Court orders full review for asylum seeker claiming anti-gay persecution

A South Korean court has overturned an immigration office’s decision to block a full review of an African man’s asylum claim based on persecution over his sexual orientation, finding insufficient grounds to reject it at the preliminary screening stage, according to local daily Kyunghyang Shinmun.

The Incheon District Court ruled in favor of the man on Sept. 22. He had sued the head of the Incheon Airport Immigration Office after authorities declined to refer his application for a formal refugee status review.

The ruling allows his application to proceed to a full review. It does not grant him refugee status.

The man arrived at Incheon International Airport in April while traveling from China to Singapore via South Korea. Instead of boarding his connecting flight, he remained in the transit area and expressed his intention to seek asylum.

He told authorities that he was gay and had been beaten and threatened in his home country because of his sexual orientation. He also said others had learned of his sexual orientation while he was studying in China, raising fears that he could face punishment if he returned home.

His home country criminalizes homosexual acts, with penalties including imprisonment.

Under Article 6 of Korea’s Refugee Act, asylum applications made at a port of entry undergo preliminary screening to determine whether they should proceed to a full refugee status review.

The immigration office declined to refer his application, concluding that he had concealed facts by submitting false documents and was seeking asylum for economic reasons.

Authorities also questioned whether he was really gay, citing his social media activity. They suspected that he had deliberately begun liking photographs of men in February to present as evidence for his claim and had deleted parts of messenger conversations while retaining exchanges that supported his case.

They also cited comments he had posted under photographs of women, including requests for photos.

The court found that those circumstances were insufficient to deny him a formal review.

“Sexual orientation belongs to the most deeply private sphere of an individual, and therefore must inevitably be determined through various indirect facts and circumstantial evidence,” the court said.

“Even when considering the evidence submitted by the defendant and the various circumstances together, it cannot be said that it is clearly established that the plaintiff is not homosexual.”

His statement that he is gay therefore could not be dismissed at the preliminary stage as clearly false, the court said.

The court also rejected the authorities’ conclusion that he had sought asylum solely for economic reasons.

It acknowledged that some aspects of his account raised questions, including his explanation of why he left China and sought asylum in Korea. But resolving those doubts required a proper investigation rather than rejection at the preliminary screening stage, the court said.

Choi Ho-yeon, an attorney with public interest law group Duroo who represented the man, criticized the immigration office’s approach.

“It was inappropriate for immigration authorities to seek to send him back without even giving him an opportunity for a refugee review when his home country criminalizes homosexuality,” Choi said.

“The grounds for doing so also stemmed from a lack of understanding of sexual minorities."