A Syrian national requested international protection on 11 November 2021. On 12 July 2022, the Federal Office for Immigration and Asylum (BFA) rejected his application for refugee status but granted him subsidiary protection and issued a residence permit valid for 1 year. The applicant lodged an appeal against this decision before the Federal Administrative Court (BVwG), which on 30 September 2024 upheld the applicant’s appeal, and granted him refugee status. The BFA lodged an extraordinary appeal against this judgment before the Supreme Administrative Court (SAC), challenging the lower court’s reasoning, in particular its assessment of return possibilities to Syria.

The SAC recalled that, pursuant to under Section 41 of the VwGG, the lawfulness of the contested decision must be assessed on the basis of the factual and legal situation at the time of the lower court’s judgment, and that later developments are not relevant. It reiterated its established case-law on the obligation to state reasons under Section 29 of the VwGVG, which requires: a clear determination of the decisive facts, a comprehensible assessment of evidence in case of conflicting information, and a presentation of the legal considerations leading to the decision. The SAC held that the lower court violated this obligation. According to the SAC, the lower court had assumed that the applicant could return to Syria only via border crossings controlled by the Syrian regime, exposing him to a risk of arrest and forced military service. The SAC held that this conclusion of the lower court was based on outdated country-of-origin information (COI), in particular an ACCORD report of May 2022, without adequately addressing more recent material. According to the SAC the lower court should have engaged with newer COI including the thematic report of the Austrian State Documentation of 25 October 2023 (‘Syria – Border Crossings’), which indicated that the Semalka–Faysh Khabur border crossing was open to the movement of persons. As a result, the lower court’s finding that the applicant could not safely or realistically enter Syria or reach his region of origin was deemed by the SAC as incomprehensible and insufficiently reasoned.

The SAC further clarified that it is not decisive whether entry into a safe part of the country would be legal from the viewpoint of the alleged persecutor, but rather whether the applicant for international protection could actually and safely reach that area without exposure to persecution.

Finally, the SAC recalled that it could not be assumed with significant probability that every Syrian refusing military service would be automatically attributed an oppositional political attitude by the Syrian authorities.

The Supreme Administrative court found the appeal admissible and well-founded. It held that the decision of the lower court was vitiated by a violation of procedural provisions, due to inadequate reasoning, and therefore set it aside pursuant to Section 42(2)(3)(b) and (c) of the VwGG.