The applicant, a national of Iraq, requested international protection on 9 November 2015. He cited the unrest and civil war in Iraq, stating that militias had attempted to recruit him. He also claimed that his clan's ties to Saddam Hussein led to him being accused of murdering people during Hussein’s regime, leaving him unable to attend school, work, or move freely. On 30 May 2018 the Federal Office for Immigration and Asylum (BFA) rejected the application and issued a return decision. The appeal against this decision was dismissed as unfounded by the Federal Administrative Court on 4 September 2018, which found that the applicant’s argument that he had been threatened and prosecuted due to his membership in his clan had been presented vaguely, superficially, and inconsistently, and was therefore not credible. The Higher Administrative Court also dismissed a further appeal on 12 December 2018. On 15 January 2019, the applicant filed a subsequent application, claiming that he had discovered his family’s ties to ISIS, which led to threats from both militias and relatives seeking revenge for the arrest of one of his family members. He also cited continued threats due to his family's connections to Saddam Hussein. On 27 June 2019, the BFA rejected the subsequent application, issued a return decision, and imposed an entry ban for one year. The appeal against this decision was dismissed as unfounded by the Federal Administrative Court on 24 July 2019, citing a lack of credibility.

On 16 March 2022, the applicant filed a second subsequent application for international protection, claiming that he was homosexual and had not disclosed it in his previous applications due to fear, including because his uncle knew the interpreter. He explained that his family in Iraq had become aware of his sexual orientation and severed contact with him. The applicant reported receiving death threats if he were to return to Iraq and stated that he could not live there due to societal rejection of homosexuality and the high risk of being killed. The BFA rejected the second subsequent application on 3 June 2022, stating that the applicant should have disclosed his sexual orientation in his earlier applications. The rejection was also based on discrepancies between the applicant's previous statements about his relationships and contact with his family. The applicant appealed this decision to the Federal Administrative Court.

The court first proceeded with the evidence assessment. It noted that the applicant supported his claim by submitting evidence, including photographs of his partner and written statements from others confirming his homosexual orientation. The court held that the BFA failed to conduct the necessary examination of the content and probative value of the documents submitted. The court also reiterated its established principle that witnesses who can testify to perceptions of the applicant's sexual orientation or same-sex relationship must be heard, without the need for a formal request for evidence before dismissing the argument's credibility. Hence, it found it incomprehensible why the BFA failed to hear the applicant’s partner and, if necessary, other individuals who had expressed their views in writing regarding the applicant’s sexual orientation. The court found that the proceedings at first instance had been deficient, as all relevant circumstances were not fully considered for a conclusive evaluation, and this undermined the evidence assessment.

Moreover, the court disagreed with the BFA's view that the information provided by the applicant in previous proceedings, or the timing of his disclosure regarding his sexual orientation, necessarily led to the conclusion that his submission was incorrect. The court affirmed that, in line with CJEU case law, the mere fact that a person did not immediately disclose their homosexuality does not, given the sensitive nature of the issue, undermine the credibility of such a claim. According to the court, the applicant had presented compelling reasons for not disclosing his sexual orientation, including fear of his uncles residing in Austria. It confirmed that one of the applicant’s uncles was offering translation services, meaning the applicant’s subjective fear of indiscretions could not be dismissed. Additionally, the court observed that the applicant explained in detail that he had only felt safe when in contact with people who supported him. Therefore, the application submitted on 16 March 2022 was not so temporally distant that the lack of credibility regarding the applicant’s claim on his sexual orientation could be inferred solely from the timing. The court also held that the inaccurate information in the previous procedure was not decisive: the BFA should have considered the credibility of the applicant’s argument regarding his sexual orientation in light of the entire investigation, rather than solely relying on the concluded procedure based on the first application for international protection and the later timing of the argument. It highlighted that the absence of such an assessment was evident from the contested ruling, which did not contain explicit findings regarding the applicant’s sexual orientation. In light of this, and considering the comprehensive evidence submitted, the credibility of the applicant’s claim could not be dismissed.

In terms of legal analysis, the court held that a subsequent application for international protection cannot be rejected solely on the grounds that the facts presented are covered by the res judicata of a previous decision, without an examination being carried out as required by Article 40(2) and (3) of the recast Asylum Procedures Directive (recast APD). This examination should determine whether "new elements or findings" have emerged or been presented by the applicant that significantly increase the likelihood of the applicant being recognized as a beneficiary of international protection under the recast Qualification Directive (recast QD). The court observed that the subsequent application in question was based on circumstances that were not raised in the final proceedings and which, in part, also took place after the final conclusion of the first two asylum procedures. In his submissions, the applicant referred not only to his homosexual orientation in general, but also to the fact that his relatives living in Austria had communicated to his family in Iraq that the applicant "did not respect religion" and had become a "bad person." In doing so, the applicant referred to events alleged to have occurred after the last decision on the merits. The court further noted that the applicant claimed (for the first time) to be homosexual and, therefore, feared persecution in case of a return to Iraq. New elements were thus put forward that could significantly contribute to the likelihood of the applicant being granted international protection. Hence, the court held that the BFA wrongly relied on the fact that any arguments put forward by the applicant had already been rejected due to the res judicata effect of the Federal Administrative Court's decision of 4 September 2018.

The court also found that the BFA did not conclusively and comprehensively reject the credibility of the claim, as it failed to conduct an in-depth examination. It clarified that there had been a significant change in the facts compared to the first asylum procedure, which precluded assuming that the case had been already decided. The court deemed that the finding of the applicant's sexual orientation could undoubtedly have contributed significantly to the likelihood of being granted international protection. It specified that the applicant's failure to present his alleged sexual orientation in previous asylum procedures could not be held against him. 

Thus, the court held that it was necessary to examine the credibility of the applicant’s arguments, taking into account the entire results of the investigation to date, and to make a decision on the substance. It clarified that it was at least possible that, if returned to his region of origin, the applicant could face persecution under Article 1(A)(2) of the Geneva Refugee  Convention due to his alleged homosexual orientation. The court also added that, considering the situation in Iraq, it was not inappropriate to expect that the outcome of the case could change after further examination.

The court concluded that the contested decision infringed the applicant's right to a decision on the merits. Therefore, it upheld the appeal and annulled the decision.