The case concerned a Syrian national from the Deir ez-Zor governorate who applied for asylum in Austria on 22 April 2022. The applicant stated to fear recruitment into the military in Syria, where he would be forced to commit war crimes and crimes against humanity. By decision of 24 November 2022, the BFA refused to grant refugee protection and granted subsidiary protection instead. The applicant lodged an appeal against this decision before the Federal Administrative Court on 20 December 2022.

The Federal Administrative Court referred to the CJEU judgment, Andre Lawrence Shepherd v Federal Republic of Germany, C-472/13, 26 February 2015 and EZ v Federal Republic of Germany, C-238/19, 19 November 2020 and stated that military service performed in the context of a general civil war which is characterized by the repeated and systematic commission of war crimes could constitute an act of persecution within the meaning of Article 9(2)(e) of the recast QD. The Federal Administrative Court further remarked that the refusal of military service could only constitute an act of persecution relevant to asylum if it was linked to a ground for asylum, such as political or religious convictions, or if the person concerned is accused by the state of having an oppositional attitude because of the refusal of military service and the imposed sanctions lack any proportionality.

Regarding the act of persecution, the Federal Administrative Court noted that in light of country information on the situation in Syria, including EUAA, Country Guidance: Syria, 7 February 2023, EUAA, Syria: Targeting of Individuals, 28 September 2022 and EASO, COI Report, Syria: Military service, 3 April 2021, there is a high likelihood of an involvement in activities that constitute violations of international humanitarian law, international criminal law and/or international human rights law upon conscription into the armed forces in Syria. Furthermore, the court found that as the conditions of detention in the event of refusal of military service may include torture and are disproportionate, they can in substance also constitute an act of persecution within the meaning of Article 9(2)(c) of the QD.

However, the Federal Administrative Court noted that according to the CJEU, such a persecution had to also be asylum-relevant. Therefore, refusal to perform military service must be the only available option for the applicant to avoid the potential commission of war crimes (CJEU, Andre Lawrence Shepherd v Federal Republic of Germany, C-472/13, 26 February 2015). In the view of the Federal Administrative Court, a specific examination of the reasonability of such an alternative to military service was not necessary if the alternative is legal under the law of the country of origin and does not appear to be prima facie incompatible with the principles of the ordre public in the country of origin.

The court considered that pursuant to country of origin information there was the legal possibility in Syria of paying an exemption fee in order to reliably avoid conscription for military service. As the applicant had the legal and factual means to pay such an exemption fee, and moral or political reasons of objection to payment did not have any asylum-relevant significance, the applicant had the possibility to legally avoid military service. The Federal Administrative Court concluded that the applicant was therefore neither forced to commit war crimes, nor to refuse military service which would lead to subsequent asylum-relevant detention conditions. Based on the above, the court held that there was no act of persecution relevant to asylum.

Nevertheless, the Federal Administrative Court continued to also examine the existence of a plausible link between the (potential) act of persecution and the ground of persecution of political opinion. The court referred to the established case law and country of origin information and ruled that the applicants did not have to fear persecution by Syrian security forces upon return to Syria solely based on the fact they have evaded military service by fleeing abroad.

Based on EUAA, Syria: Targeting of Individuals, 28 September 2022, the court also held that objection to military service would be seen as an act of disloyalty, but not per se as an oppositional attitude. Furthermore, the court did not recognize special circumstances that would make the Syrian regime to accuse the applicant of having an oppositional attitude, so that there was also no connection between the (potential) act of persecution and the ground of persecution of political opinion.

Therefore, due to the lack an asylum-relevant persecution and a plausible link between persecution and ground of persecution, the Federal Administrative Court rejected the applicant’s appeal.