The applicant, a Syrian national, Muslim and Arab, has claimed asylum in Austria on grounds that he was drafted for military service as a reservist and he is afraid returning to his country and his village because the Kurdish party YPG attacked his village and killed many people, including his cousin and brother. The applicant provided a military book, a copy of an extract from the family book and marriage certificate. He explained that he has a wife in Lebanon, he went to school in Syria for 9 years, worked for 13 years as a constructor in Syria, after that he did military service and worked as a farmer. He then travelled legally to Lebanon where he worked as a construction worker then he illegally entered Syria and stayed in transit for 7 days prior to travelling to Turkey and Austria. He claimed as reason to fleeing to Lebanon and fear of return to Syria that he fears being recruited either by the Syrian government or the Kurds and he would be sent to war.

The BFA rejected his claim for asylum but granted him subsidiary protection status. The BFA justified its negative decision on asylum on the fact that it considered no significant risk for the applicant for being conscripted by the Kurdish in Syria, and that his home region can be reached via one of the few crossing points which are not controlled by the Syrian government.

The applicant B.F. appealed against the negative decision and claimed a risk of being drafted to military service in Syria.

The Federal Administrative Court made a detailed examination of the case and consulted updated country of origin information, including EUAA COI Country Guidance Syria of February 2023 and COI report: Syria – Security situation, July 2021, on the security situation and military service. A hearing was also organised before the court. It its assessment, the court found the statements of the applicant as credible and noted that the applicant was able to clarify ambiguities during the oral hearing. The court found the statements credible with regard to the reason of having fled his country, and noted that although there is no danger of forcibly recruitment to do reserve service of being punished for refusing military service, as revealed by country reports, however, if the applicant would return to Syria, there is a real risk that he will be drafted into military service for the Syrian army or punished for refusing it. The court noted that the only possible return to Syria is via the Damascus airport which is controlled by the Syrian government. According to the local law in Syria, man between 18 and 42 years old are requested to perform two years of military service. According to Legislative Decree no. 30 of 2007 art. 4 lit b, this applies from January 1 of the year in which the age of 18 is reached until the age of 42 is passed and the applicant falls within the age range. According to reports and studies by various human rights organisations, the risk of forced recruitment is one of the main obstacles to return for numerous refugees and there is no possibility for legal conscientious objection in Syria or a civilian alternative service. The court concluded that there is no regular or safer way to avoid military service in Syria. If conscript would attempt to evade military service by fleeing to other parts of the country not under regime control, they would have to pass through numerous military and paramilitary checkpoints, with the risk of forcible conscription, either by the Syrian armed forces, intelligence services or pro-regime militias. Men of military age are forbidden to leave the country and the applicant was listed as a reservist on the website of the Syrian Defense Ministry. The court mentioned that according to the European Union Agency for Asylum (EUAA) COI report, all conscripts can potentially be sent to the front and thus the applicant would be forced to carry out military actions contrary to international law. With regard to conscription to the Kurdish militia, the court found that the applicant passed over the age limit for being recruited for them (conscription is between 18-24 years old). The court considered it was not possible to determine with a sufficient degree of probability that the applicant would be threatened with direct and personal persecution by the Kurds in his town village.

The court ruled, based on COI and personal situation of the applicant that he has a well-founded fear of persecution and that he has only one reasonable and legal entry to his country via the airport in Damascus, and that this entry puts the applicant at risk of being caught by the Syrian army and persecuted. The region of origin of the applicant cannot be reached without risks endangering physical safety due to reasons related to grounds for asylum.

The Federal Administrative Court overturned the negative decision and granted the applicant refugee status.