Germany – Federal Administrative Court, 2 June 2017, 1 B 108.17

Facts:

The case concerns a Syrian army reservist who has requested to be granted refugee status. The initial court of appeal came to the conclusion that the sanctions for returning Syrian army reservists, who had evaded military service, are a punishment for an offense against general civic duties. Accordingly, the sanctions would not affect a person in a sphere relevant to asylum law. Therefore, the Higher Administrative Court Rhineland-Palatinate did not grant refugee status.

The court refused an onward appeal to the Federal Administrative Court.

Decision & reasoning:

The court set out that for an onward appeal to the Federal Administrative Court to be granted, there must be a legal question of fundamental significance. Contrary to the initial appeal court, a question fact which is fundamentally significant is not sufficient, even if the factual findings of the case are relevant for a wide range of cases. The court explained that in contrast to British procedural law, the German Federal Administrative Court is not authorised to clarify fundamental factual questions.

The judges refer to the decision of the Federal Constitutional Court from the 14th of November 2016 (2 BvR 31/14 – InfAuslR 2017, 75), confirming, that the Federal Administrative Court is bound to the fact findings of the first level court of appeal. Divergent assessments of a similar factual basis also do not point towards a fundamental question regarding the interpretation and application of article 108 of the Administrative Court Act.

The Federal Administrative Court then went on to argue that a legal matter of fundamental significance also does not follow from the jurisprudence of the Bavarian Administrative Court, which was consulted in the complaint (Bavarian Administrative Court, 12th December 2016 – 21 B 16.30372).  The Bavarian Administrative Court applies the same legal criterion as the initial appeal court in the present case to answer the question whether the complainant is at risk of persecution in the sense of Article 3b of the Asylum Act on grounds of his military evasion.

According to constant jurisprudence of the Federal Administrative Court, sanctions imposed for draft evasion are only considered as a relevant persecution in terms of refugee law, if they affect the person in a sphere which is relevant to asylum (i.e. religion, political opinion, other characteristics relevant to asylum). Therefore, the sanction must be more than a punishment for an offense against general civic duties.

The court presented the opinion of the Bavarian Administrative Court, that returnees, who fled from a civil war situation and evaded military service, are threatened by human rights violations (especially torture). That opinion relies on the assumption that the Syrian security forces do not sanction the returnees for violating a civic duty applying to all  male citizens, but rather accuse them of a disloyal and politically oppositional attitude.

The court then continues by arguing that this conclusion, which differs from the initial court of appeals ruling in the present case, is based on a different assessment of the Syrian regime and its security forces. Hence, it is a question of fact and evidence, which is reserved for the initial court of appeal. The court concludes that the claimant has not demonstrated that a question of fundamental significance in respect of a legal question, thereby triggering the jurisdiction of the Federal Administrative Court, has been shown in this case.

Outcome:

The claimant’s complaint against the rejection of an onward appeal to the FAC held by the Higher Administrative Court Rhineland-Palatinate is dismissed.

The claim for granting of legal aid is also declined. 

Observations/comments:

This case summary was written by Tim Drunkenmölle.