An applicant of Syrian nationality and Sunni Islamic religion requested international protection on 24 November 2021 in Austria. The Federal Office for Immigration and Asylum (BFA) did not grant him refugee status but subsidiary protection, a decision which he appealed to the Federal Administrative Court. The Court dismissed the appeal without an oral hearing considering that, although the applicant was still of military service age, there was no greater risk of being conscripted in the event of his return to Syria. Furthermore, it was considered that in the event of a call-up the applicant would have been able to buy his exemption from military service. On the other hand, the court also held that the risk of conscription for military service is not a ground for asylum under the Geneva Convention.

The applicant contested this judgment and appealed to the Constitutional Court on the grounds that the reasoning of the Federal Administrative Court was contradictory to other Lander decisions, as well as that it failed to carry out the necessary investigations into the forced recruitment by the Kurdish People's Protection Units and the Syrian regime. Furthermore, the applicant claimed that the requirements for the omission of an oral hearing were not met.

The Constitutional Court allowed the appeal and annulled the contested judgment. It ruled that the Federal Administrative Court had neither heard nor assessed the allegations made by the applicant, who, referring to the country-of-origin information, claimed that he was considered an evader of military service due to his illegal departure from Syria and that he would therefore most likely risk being conscripted for military service in the event of his return. In support of this claim, the applicant pointed to the increased recruitment efforts by the Syrian army, the increased arbitrariness, as well as his young age, his medical fitness, his illegal departure, the fact that he had not yet completed his military service and that he came from a (formerly) opposition-occupied and extremely unstable area. Therefore, the Constitutional Court held that the Federal Administrative Court assumption that the applicant was unlikely to be called up was speculative as it was not supported by the country-of-origin information.

The court also recalled that the granting of asylum depends on the applicant's situation at the time of the decision. Nevertheless, the judgment under appeal did not explain whether, at the time of the decision, the applicant was able to pay for his exemption from military service if he returned to Syria. In this regard, no account was taken of the applicant's assertion that he could not afford to ‘buy his way out’, nor of the certainty of the application of this rule to men who had fled since the beginning of the civil war. Furthermore, the court noted that the decision did not legally justify its denial of asylum on the grounds of the risk of conscription into Syrian military service, especially, when the country-of-origin information established that there was a high probability of being involved in war crimes as a member of the Syrian army. The court therefore ruled that the decision was manifestly flawed and violated the applicant’s constitutionally guaranteed right to equal treatment.