The case concerned a stateless Kurdish applicant from the city of Qamishli in the province of Al-Hasakah, which is a district on Syrian territory under control of the Kurds. The applicant applied for asylum in Austria on 23 January 2021. He claimed to be at risk of recruitment into the military in Syria upon return. By decision of 17 May 2021, the BFA granted subsidiary protection and refused to grant refugee protection. The applicant lodged an appeal against this decision before the Federal Administrative Court, which was dismissed as unfounded by judgement of 11 November 2022.

In its judgement, the Federal Administrative Court argued that the applicant was not exposed to recruitment to the Syrian military, because the Syrian army was unable and unwilling to recruit people in the autonomous regions in north-east-Syria which were controlled by Kurds. The Federal Administrative Court also stated that, for the determination of refugee protection, the accessibility of the area of origin was not relevant and therefore risks combined with the travelling to the region of origin should not be considered.

The applicant lodged a complaint against this decision before the Federal Constitutional Court based on a violation of the constitutional right to equal treatment of foreigners. The Federal Constitutional Court recalled that such a violation occurred in particular if the Federal Administrative Court has exercised arbitrariness in issuing a decision.

In particular, the Constitutional Court stated that the Federal Administrative Court had wrongly disregarded the fact that, according to the country of origin information on the situation in Syria, there were Syrian authorities in the government enclaves in Qamishli which were responsible for recruitment and that that there were reports on arrests and recruitment of conscientious objectors there. In addition, the court held that country of origin information showed that the practice of "filtering out" of conscripts during road checks or at one of the numerous checkpoints was widespread.

According to the Federal Constitutional Court’s considerations, the finding that Syrian government was unable or unwilling to recruit Kurds for military service in the autonomous regions, was therefore arbitrary. The Federal Constitutional Court additionally pointed out that in the continued proceedings, persecution relevant to asylum had to be examined with regard to the accessibility of the region of origin. Based on the above, the Federal Constitutional Court ruled that the applicant's right to equal treatment between foreigners had been violated.