A Syrian national from Manbij requested international protection in Austria on 15 February 2022, arguing that he had left Syria because of the war, that the Kurds and the Syrian regime had tried to recruit him, and that he wished to remain neutral and uninvolved in politics. On 10 October 2022, the Federal Office for Immigration and Asylum (BFA) rejected granting refugee status but granted him subsidiary protection and a one-year residence permit. The applicant appealed to the Federal Administrative Court, which upheld the appeal and granted refugee status, finding that the applicant, who had not completed military service and could not safely return via regime-controlled border crossings, risked arrest, forced conscription involving participation in war crimes, or imprisonment in inhuman conditions. BFA lodged an extraordinary appeal against this decision before the Supreme Administrative Court (SAC), alleging that the court did not use up-to-date country of origin information (COI) and that no ground for persecution was established under Article 1(A)(2) of the Geneva Refugee Convention and Article 10 of the recast Qualification Directive (QD).  

SAC recalled that lower courts must provide sufficiently reasoned decisions based on accurate and up-to-date information. It observed that the Federal Administrative Court had granted refugee status on the basis that the applicant could only return safely to his home region in Syria through border crossings controlled by the Syrian regime where he risked arrest and conscription into military service, participation in war crimes, imprisonment in inhumane conditions, and being perceived as a political dissident. 

SAC noted that the lower court referred to an ACCORD report of May 2022, which was not up-to-date at the time of the decision, to obtain information on the Semalka-Faysh Khabur border crossing - relevant for the applicant to reach his home region - determining that it was unclear whether it was currently open without restrictions. SAC held that the lower court completely disregarded more recent reports, such as the country report “Syria – Border Crossings” issued by the Austrian State Documentation Unit on 25 October 2023, which stated that the border crossing in question was open without restrictions. Therefore, SAC ruled that the lower court’s conclusion that the applicant could not enter Syria or his home area was not comprehensible, since it was based on outdated reports. Moreover, SAC noted that the lower court found that the Syrian regime considered refusal to perform military service, and the related departure from Syria, as an expression of dissent and that, therefore, there was a valid reason for persecution under Article 1(A)(2) of the Geneva Refugee Convention and Article 10 of the recast QD. SAC reiterated its established case law, according to which COI does not support the inference, with the required degree of probability, that every Syrian who refuses military service is regarded as holding an oppositional attitude. Similarly, SAC had already established that it cannot be assumed that every Syrian living abroad who has not performed military service is perceived in Syria as oppositional and, therefore, at risk of disproportionate punishment. In the present case, SAC held that the lower court disregarded these requirements set out in its established case law and failed to explain, by reference to the applicant’s specific circumstances, the reasons why he was threatened with persecution on asylum-relevant grounds because of his refusal of military service. SAC ruled that a mere remote possibility of persecution, without consideration of the individual circumstances, was insufficient to justify the granting of asylum 

SAC concluded that the Federal Administrative Court had failed to properly assess the evidence and to base its findings on up-to-date country reports. It therefore upheld the appeal lodged by the BFA and annulled the decision of the lower court on grounds of unlawfulness.