BCV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The International Treaties Obligations Assessment 10 On 12 February 2016 the appellant was interviewed for the ITOA by another officer of the Department, a delegate of the Minister (the Assessor). The appellant lodged written submissions with the Department on 14 August 2015 and 3 March 2016. 11 On 11 April 2016, the Assessor completed the ITOA. The Assessor was not satisfied that the appellant was a person in respect of whom Australia owes non-refoulement obligations under any of the relevant instruments of international law, being the Refugees Convention; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); or the International Covenant on Civil and Political Rights (ICCPR). 12 The Assessor considered the appellant's claims for protection, including those raised as part of the RSA and the IMR, and made findings of fact under the following headings: (a) The appellant is an Afghan citizen and a Hazara Shiite Muslim; (b) The appellant was born in Jaghori and resided there until he departed from Afghanistan; (c) The appellant worked on family land, with his brother's business, and as a taxi operator; (d) The appellant's brother went missing in Herat during 2008, possibly due to the Taliban; (e) The appellant was stopped by Taliban whilst driving his taxi during late 2009; and (f) The appellant left Afghanistan for Australia in late 2009 or early 2010. 13 Central to the appellant's claim for protection in the ITOA was an incident in which he had been stopped by the Taliban whilst driving his taxi on the road between Jaghori where he lived and Kabul. He said that he had purchased a new taxi and had made about five or six return trips from Jaghori to Kabul carrying passengers and goods. He claimed that on the sixth trip, in late 2009, he was stopped by the Taliban while driving back from Kabul with his mother, his nephew and three other passengers. He said that the Taliban members found some books in English that he had borrowed from the library for his brother and they beat him. They also smashed some solar panels he was carrying on the roof of the taxi that he had purchased in Kabul, and took phone cards that he had purchased for a customer in Jaghori, and seized his taxi registration papers, his Taskera (an Afghani identity card) and his brother's Taskera, which had been used to borrow the books. He said that he, his mother and his nephew were allowed to go because his mother was crying and begging for them to be released but that one of the passengers, another Hazara, had US currency in his possession, and he was detained. 14 The appellant claimed that he was not safe in Afghanistan because the Taliban were interested in him because he was against their law, because they were against books in English and technology. He said he was afraid that the Taliban would come and get him because they knew his address, having kept his Taskera. He decided to sell his taxi and leave Afghanistan. 15 The appellant claimed to fear harm from the Taliban and Pashtuns if returned to Afghanistan because: (a) he is a Hazara Shiite; (b) he had been stopped by the Taliban and they retained his identity document; (c) his brother went missing in Herat during 2008, possibly due to the Taliban; (d) he had lived in Australia for five to six years and he would be imputed to be a failed asylum seeker who had been 'Westernised'; (e) he would be killed by the Taliban, ISIS or other anti-Shia militants whilst travelling on roads in Afghanistan because the Taliban kept his Taskera; and (f) the Afghanistan government would not be willing or able to protect him because he is a Hazara. 16 The Assessor accepted that the appellant's brother went missing, presumably killed, as a result of Taliban or criminal activity either in or near Herat in 2008. The Assessor found however that nothing subsequently happened to the appellant's family, that the appellant would have no reason to travel to Herat, and thus did not accept that the appellant would face a real chance of being seriously harmed as a consequence of his brother going missing at the hands of the Taliban. 17 The Assessor accepted that the appellant travelled to Kabul for various reasons, including to carry valuable goods for people in his village and to earn income as a taxi driver, and accepted his account in relation to having being stopped by the Taliban. But the Assessor did not accept that the appellant was at future risk from the Taliban because they had retained his and his brother's Taskera. The Assessor noted that the Taliban had allowed him to depart even though he was carrying books in English and solar panels, and then only detained a Hazara passenger who was carrying US currency. Although the Taliban retained his papers, the Assessor did not accept that the Taliban has a systematic intelligence network that would be capable of re-identifying the appellant if they did stop him again, or to recall the reason they previously stopped him. 18 In a finding which is central in the appeal the Assessor said that: The available country information indicates that the Taliban would not target Hazaras merely for reason of their race and ethnicity. If the Taliban sought to kidnap a possible victim, it was often on the basis of perceived wealth, association with the government, involvement with the media, or contact with foreign agencies or foreign troops. The Claimant's taxi at the time was a second-hand vehicle, and this would have been unremarkable on roads to and from Kabul. Based on his previous conduct in Afghanistan as a taxi driver to Kabul there is no circumstantial evidence that the Claimant would be imputed to be wealthy, or a potential kidnapping target in Afghanistan. (Emphasis added.) 19 In relation to the appellant's claim that he and his brother were identified by the Taliban and seen as 'pro-western' because of the English books and the solar panels, the Assessor did not accept that the Taliban could identify the appellant or his brother if they were apprehended in the future. On the basis that the Taliban let the appellant go then, and that his cultural outlook had not fundamentally changed since he had been living in Australia, including that he still wears traditional Hazara dress, the Assessor did not accept that the appellant would face a real chance of serious harm by the Taliban for being pro-western. 20 The Assessor noted that the appellant's mother and brother had moved from Jaghori to Quetta but did not consider that fact would result in the appellant facing a greater risk of harm. The Assessor considered that the appellant could live in Kabul which was a relatively safe destination for Hazaras, and that Hazaras are able to avail themselves of state protection in Kabul. 21 The Assessor also noted the appellant's claim that Hazaras travelling from Hazara districts are not safe and are targeted by the Taliban, but assessed there was a less than real chance that the appellant would be seriously harmed because he did not have distinguishing characteristics that might indicate that he was a wealthy person or that he had become westernised. The Assessor considered that kidnappings are relatively rare for Hazaras in Afghanistan, and that the appellant had one incident with the Taliban in which, although he was robbed, he was not physically harmed and he was released. 22 In relation to the claimed risk from the Taliban as a member of an ethnic minority the Assessor found that there was no material evidence that would indicate that Hazara Shiites without any other characteristics that may draw adverse attention from agents of harm, are at risk of being targeted by the Taliban or other related groups in Afghanistan. Thus, the Assessor was not satisfied there was a real chance the appellant would be seriously harmed or killed by the Taliban. 23 In relation to the appellant's claim that he faced a risk of being attacked by ISIS fighters who are active in the outskirts of Kabul, the Assessor found that the appellant was not able to articulate a reasonable basis as to why he would face a real chance of being seriously harmed by ISIS or related groups based in his history or personal profile, and that such a claim was not supported by country information. 24 In relation to the situation for Hazaras in Kabul the Assessor considered that the appellant would likely have employment opportunities in Kabul and that he would therefore be able to support himself there. The Assessor said: I note that the Claimant has been raised in a successful business family that operated a car sales business and taxi business. The Claimant is a native of Jaghori and has tribal links there. The Claimant has demonstrated the ability to establish his own small business as a taxi driver operating within Jaghori and also on the roads to Kabul after his elder brother disappeared in 2008, and the Claimant had to close his brother's business. This indicates the Claimant has demonstrated his ability to successfully adapt to changing circumstances by closing one family business and starting another after the suspected death of his brother, who was the eldest surviving male family member. The Claimant has experience in small business operation and also sales and customer service. There are self-employment opportunities available to the Claimant in Kabul but also in Jaghori. I assess it as a remote chance that the Claimant would be unable to support himself or his family with his business experience and acumen. The Assessor also considered that the country information indicated that ethnic based violence in Kabul is rare, and that Kabul was a relatively safe destination for Hazaras who are able to establish employment opportunities, integrate in a Hazara area and locate housing. 25 The Assessor found that in Afghanistan and particularly in Kabul there is a relatively high level of state protection available in the city compared with rural areas, but that the risk faced by different individuals varies greatly. Based on country information the Assessor considered that people associated with the government or the international community are at a significantly higher risk of harm than ordinary Afghans in Kabul. The Assessor considered that the appellant has no demonstrated profile other than being a Hazara Shiite, he was not associated with the government or the international community, he was not targeted as an imputed wealthy businessmen previously and there was not a real chance this would happen in the future, and he would be adequately protected by the State in a place such as Kabul. 26 For those reasons, the Assessor found that the appellant did not have a well-founded fear of persecution for a Refugees Convention reason, that the appellant was therefore not a refugee and that Australia does not owe non-refoulement obligations to him under the Refugees Convention. For similar reasons the Assessor found the appellant was not owed complementary protection, and Australia did not owe non-refoulement obligations in respect of him under the CAT or ICCPR.

The Federal Circuit Court decision 27 On 12 May 2016 the appellant sought judicial review of the ITOA in the Federal Circuit Court. 28 By an amended application dated 29 October 2018 the appellant raised six grounds of review, but only Ground one is relevant in the appeal. On 24 October 2019 the primary judge dismissed the application, having found that the appellant did not establish any of the grounds of review. 29 His Honour summarised the ITOA decision in the following terms (at [16]-[21]): 16. On 13 April 2016, the Assessor notified the applicant of his assessment that Australia did not have non-refoulement obligations to the applicant, providing him a copy of the ITOA, which was comprehensive. 17. The Assessor examined the applicant's background and migration history in detail. Throughout this section of the assessment, the Assessor identified the claims that had been made. After identifying Australia's non-refoulement obligations and the materials which were before him, the Assessor noted certain new claims that were made including, relevantly, that the applicant feared his life and liberty would be threatened on account of his imputed political opinion. 18. The Assessor then examined country information, including material that was considered to be adverse to the applicant and which he had been invited to comment on. In the course of addressing whether it would be reasonable for the applicant to relocate to Kabul, the Assessor noted at p. 24 that the applicant's brothers were all of working age and well educated. The Assessor stated that: "I also noted that the Claimant's family is wealthy and have a lot of experience operating businesses and leasing properties for businesses, and are well-placed to offer support to the Claimant." Referring then to the potential risk faced by Hazaras at the hands of the Taliban and ISIS, the Assessor observed that ethnicity was really the primary motivating factor, but could also be a contributing factor, in relation to hostage taking by such groups, observing: It is unclear whether this targeting is being conducted because of the Hazaras ethnicity, because of a perceived association with the government or international community, or because Hazaras can often appear wealthy, making them an attractive target for kidnap and ransom. Furthermore, Pashtun kidnappers may be less likely to kidnap other Pashtuns, partly due to the risk that this could create a cycle of intertribal violence and retribution; Hazaras may represent a lower risk target from the kidnappers' perspective. 19. The Assessor then asked why the applicant would be imputed to be wealthy or an associate of foreign groups in Afghanistan. To this question the applicant responded that there had been multiple attacks in Kabul in the preceding 18 months. The Assessor noted that none of those attacks were against Hazaras without any other distinguishing characteristic that might draw the attention of anti-Shia elements. After addressing further country information, the Assessor considered the applicant's responses to various issues that were considered adverse information and concluded that "there was little country information to support a claim that Hazaras, without other characteristics that may give them a profile risk level, were being targeted by insurgents, the Taliban, or anti-Shias in Afghanistan during 2015 or 2016." 20. When addressing his findings of fact, the Assessor found that certain of the applicant's claims were plausible. These included the applicant's claim that he had been stopped by the Taliban and forced out of his vehicle and that the Taliban had stolen or damaged property, including his identity papers, and detained the other Hazara who held US currency, but that the applicant and his family had been allowed to continue their journey. 21. In undertaking a refugee assessment, the Assessor accepted that the applicant's claims to fear persecution were made on the grounds of race, religion, imputed political opinion and as a member of a particular social group (westernised failed asylum seekers). The Assessor found that the harm feared by the applicant was serious harm which amounted to persecution, and proceeded to examine whether that fear of harm was well-founded. In doing so, the Assessor considered the following topics: (a) that applicant's brother went missing in 2008 or 2009; (b) the applicant was stopped in his taxi by the Taliban; (c) the applicant and his brother had been identified by the Taliban and were seen as pro-western; (d) the applicant's family had abandoned their landholding and moved to Pakistan; (e) Hazaras travelling from Hazara districts were not safe and were targeted by the Taliban; (f) the applicant's risk from the Taliban as a member of an ethnic minority; (g) ISIS (Daesh) was recruiting fighters in the outskirts of Kabul; (h) the applicant's profile as a westernised Hazara; (i) the situation for Hazara's in Kabul; (j) relocation, and; (k) state protection. By way of overview, I note that the Assessor undertook a detailed analysis of the application and that the reasons were comprehensive. 30 In respect of Ground 1 his Honour found as follows (at [30]-[37]): 30. Ground 1 reads: The second respondent erred in engaging in illogical reasoning in relation to whether the applicant would be targeted on the basis that he would be imputed to be wealthy. Alternatively, the second respondent failed to take into account a relevant consideration. Ground 1 was not further refined by any particulars. 31. The applicant submitted, correctly, that the ITOA made a finding that a Hazara person would require some additional characteristic in order to attract the Taliban's attention. However, it was said that a wealthy person, especially a wealthy Hazara, was more likely to be kidnapped. The applicant further referred to the ITOA's reference to country information that it was unclear whether targeting was being conducted because of a Hazara's ethnicity or for other reasons where Hazaras often appeared to be wealthy. It was submitted that those matters supported a conclusion that the fact of being a wealthy Hazara provided a basis upon which a person faced persecution. 32. The ITOA found there was no circumstantial evidence that the applicant would be imputed to be wealthy. It further found that he did not have distinguishing characteristics that might indicate him to be a wealthy person. Contrastingly, the applicant relied upon the fact that four solar panels were secured to the roof of his vehicle and that those items may have sufficiently signalled wealth to the Taliban as well as providing a possible association with foreign forces. The applicant referred to the ITOA's finding that, in the context of whether his family could support him, "the claimant's family is wealthy and have a lot of experience operating businesses and leasing properties for business." 33. The Assessor found it was possible that one of the applicant's passengers may have been imputed by the Taliban as being wealthy or having foreign association by reason of US currency being found on his person. However, the applicant his mother and brother had been of less interest to the Taliban, and they were released together with his vehicle and left to complete their journey to their village. The Assessor did not accept that the Taliban would regard the applicant as more than an anonymous Hazara, or that he would be identified by the Taliban because of the taxi incident. Further, the applicant was considered to have no significant profile that could lead to adverse attention in circumstances where Hazaras were not targeted by the Taliban by reason of their race or ethnicity. Nor was there evidence that the applicant would be imputed as wealthy or a potential kidnapping target based merely on his having driven taxis. The Assessor concluded that the applicant would not face a real chance of being seriously harmed by the Taliban in the reasonably foreseeable future on the basis of the taxi incident. 34. The applicant submitted that the ITOA's process of reasoning was irrational or illogical in the requisite sense. Alternatively, the applicant submitted that it demonstrated a failure to take into account a relevant consideration, namely, that he was a wealthy person. As to the alternative ground, it is clear that the Assessor did consider the issue. 35. Ground 1 and the matters upon which it is based demonstrated no more than the applicant's emphatic disagreement with the Assessor's conclusions, and otherwise seeks an impermissible merits review. In my view, there was nothing irreconcilable, illogical, or otherwise irrational for the Assessor to conclude that the applicant would not be imputed as being wealthy. Such a conclusion was one that could have been reached by some other logical and rational decision-maker. A challenge based upon illogicality or irrationality meets a high threshold. 36. It is clear from the comprehensive reasons that this aspect of the applicant's claim had been considered and addressed by the Assessor. Contrary to the applicant's submission, there was little or no cogent evidence in support of this aspect of the applicant's claim. I consider that the Assessor's treatment of the applicant's claim that he was to be imputed with the characteristic of being a person of wealth was more than sufficient and broadly proportional to the manner in which that claim was advanced. This is a case in which the court should be slow to interfere, and in my view nothing in the Assessor's reasons supports a conclusion that the finding the applicant would not be imputed with the characteristic of being a wealthy person was arbitrary, capricious or unreasonable. 37. Ground 1 is rejected. (Citations omitted.)

The appeal to this Court 31 On 14 November 2019 the appellant filed an appeal in this Court. The notice of appeal raises the following ground: The Federal Circuit Court Judge erred in failing to find that the Second Respondent erred in engaging in illogical reasoning in relation to whether the applicant would be targeted on the basis that he would be imputed to be wealthy. Particulars 1. The Second Respondent relied on country information that indicated that a Hazara person was net at risk of harm in Afghanistan because of their ethnicity, per se. It accepted that there was an increased risk of harm to any Hazara person who was imputed to be wealthy. 2. While there was no specific finding made that the Appellant was wealthy, the Appellant contends that a fair reading of the decision as a whole reveals that the Second Respondent accepted that the Appellant was a wealthy Hazara. 3. The Second Respondent found the Appellant would not be 'imputed' to be a wealthy person on the basis of: a. A lack of distinguishing characteristics that would indicate he was wealthy; and, b. A lack of circumstantial evidence' that he would be imputed to be wealthy. 4. The Appellant contends that it was illogical for the Second Respondent to find that the Appellant would not be imputed to be wealthy, given the finding that he was wealthy. The second Respondent considers the question of whether the Appellant would be: imputed to be wealthy, without reference to the fact that he was, in fact, wealthy. 5. To reason in this way was irrational, or illogical, as it did not reconcile the finding that the appellant was wealthy with the finding that he would not be imputed to be wealthy. 6. Although it may be open to consider that the question of whether the applicant was imputed to be wealthy is a question of perception, not reality. The reality that he is wealthy is a matter that bears on how he will be perceived, and it was necessary to consider the fact of his wealth, in determining whether he would be perceived to be wealthy. 7. In the circumstances, the conclusion reached by the Second Respondent that the Appellant would not be imputed to be a wealthy person was not a conclusion about which reasonable minds could differ.

The appellant's submissions 32 In written submissions the appellant argued that he had claimed before the ITOA that he was a "westernised Hazara returnee perceived as wealthy". However, in oral submissions counsel for the appellant correctly conceded that the appellant did not make an express claim for protection based upon his being wealthy, or being perceived or imputed to be wealthy. Rather, the appellant contends that the materials before the Assessor raised that claim and the Assessor was required to deal with it. 33 The appellant's essential complaint is that in arriving at the conclusion that the appellant would not be imputed to be a wealthy person and thus face an increased risk of kidnapping, the Assessor failed to take into account the reality that the appellant was, in fact, wealthy (or had been found by the Assessor to be so). He contends that the fact that he is (or was found to be) wealthy was logically connected with and relevant to whether he would be targeted by the Taliban for kidnapping. 34 In submissions to the ITOA the appellant relied upon a 2016 Department of Foreign Affairs and Trade report (DFAT report) in relation to the position of Hazaras in Afghanistan which said that "criminals and insurgents on roads tend to target people who appear wealthy or are associated with the government or the international community in attacks that can include kidnapping for ransom." The DFAT report included the following statement: Multiple credible sources informed DFAT that some bus companies are refusing to sell tickets to Hazaras because of the risk to their vehicles and drivers of being stopped by insurgents or criminals because of the possibility of Hazaras being on board. There are also credible anecdotal reports of 'spotters' being used at bus stations to call ahead and alert insurgents as to which buses are carrying Hazara people. It is unclear whether this targeting is being conducted because of the Hazaras ethnicity, because of a perceived association with the government or international community…or because Hazaras can often appear wealthy, making them an attractive target for kidnap and ransom. … While no ethnic group is immune from kidnappings, DFAT assesses that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups… It is common ground that the Assessor accepted that Hazaras who appeared to be wealthy faced a greater risk of being kidnapped. 35 The appellant points to three statements in the ITOA which he contends indicate that the Assessor acknowledged (or found) that he was, in fact, wealthy: (a) first, a passage which states "[h]is father owned 67 gerbils of land". Precisely how much land "67 gerbils" equates to is not found in the materials, but the appellant said that it is "a lot". That appears uncontentious; (b) second, in the context of whether the appellant could subsist without the support of his extended family if relocated to Kabul , the Assessor asked the appellant to comment on the following adverse information: I noted that the Claimant's brothers are all of work age and are well educated. I noted that the Claimant's family is wealthy and have a lot of experience operating businesses and leasing properties for businesses and are well placed to support the Claimant. (c) third, the passage set out above (at [23]) which includes the statement "I note that the Claimant has been raised in a successful business family that operated a car sales business and taxi business." 36 The appellant contends that the Assessor recognised the fact of his wealth when considering whether the appellant could relocate to Kabul, but only considered the fact of his wealth in that discrete context, and not in the context of deciding that the appellant was not previously targeted by the Taliban because he was imputed to be a wealthy businessman and that there was not a real chance that would happen in the reasonably foreseeable future. The appellant submits that it was illogical for the Assessor to rely on a finding that the appellant was wealthy enough to subsist in Kabul, and then ignore the implication of that finding for the purpose of deciding whether the appellant would face a risk of harm because he would be perceived to be wealthy. 37 The appellant submits that the Assessor ignored his own finding that the appellant is, in fact, wealthy and instead focused on whether the appellant had been imputed to be wealthy in the past or would be so imputed in the future. He contends that the Assessor's process of reasoning was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[135] (Crennan and Bell JJ). He argues that there was a complete failure by the Assessor to engage with the fact of his wealth when determining that he would not be imputed to be wealthy, and there was no reconciliation between the fact of his wealth and the finding that he would not be imputed to be wealthy. The appellant submits that the fact of his wealth (or the finding that he is wealthy) is incongruous with the finding that he would not be imputed to be wealthy, and that there is nothing in the decision which supports the proposition that the Assessor ever considered the appellant's actual wealth in the context of determining whether he would be perceived to be wealthy. 38 The appellant contends that if the Assessor was to reconcile the fact (or finding) of the appellant's actual wealth with the finding that he would not be imputed to be wealthy, then some further analysis was required. On the appellant's argument the Assessor did not consider how the appellant was to live without appearing to be wealthy, or whether the appellant might inadvertently display his wealth, what the consequences were for the appellant of having to live so he was not imputed with wealth, and the impact on his life and family relationships of doing so, which all have implications for whether he could live in Afghanistan, especially if he could not access the support of his family. The appellant attacks the Assessor's finding that he could survive in Jaghori or Kabul using his "business experience and acumen" without setting out how he may be able to utilise those skills and live while also holding no "distinguishing characteristics" of wealth. The appellant argues that it is unusual to find that a person who has a distinguishing characteristic such as wealth, will not also be imputed to have that characteristic. He contends that a future focussed enquiry as to whether he would be at risk of being targeted by the Taliban should have involved consideration of the reality and implications of his wealth or of his maintaining a perception that he was not wealthy in the reasonably foreseeable future. 39 The appellant contends that the primary judge erred in failing to find that the reasoning process employed by the ITOA was illogical in relation to whether the appellant would be targeted on the basis that he would be imputed to be wealthy. 40 In the alternative the appellant faintly argued that Ground 1 can be characterised as a failure to take into account a relevant consideration, namely that the appellant was, in fact, wealthy.

Consideration 41 I am not persuaded that the ITOA decision demonstrates that the Assessor fell into jurisdictional error as alleged, nor am I satisfied that the primary judge made an appealable error. 42 It is uncontentious that reasoning by an administrative decision-maker which is irrational, illogical and not based on findings or inferences of fact supported by logical grounds may establish jurisdictional error, but to do so the illogicality must meet a high threshold. It must rise to the height of "extreme" illogicality rather than being a mere lapse in logic: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [47] (Griffiths, Perry and Bromwich JJ); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(5)] (Kenny, Kerr and Perry JJ). If the conclusion is one upon which reasonable minds can differ it will not be illogical, irrational or legally unreasonable sufficient to show jurisdictional error: SZMDS at [130]-[135]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ). 43 It is plain that the ITOA contains both express and implicit findings that the appellant's family is wealthy, but that does not establish that the Assessor's reasoning process in concluding that the appellant himself would not be imputed to be wealthy was so illogical as to constitute jurisdictional error. 44 First, the Assessor did not make any express finding that the appellant was, in fact, wealthy. The express and implicit findings about 'wealth' in the ITOA concerned the appellant's family and cannot properly be characterised as findings that the appellant is, in fact, wealthy or would be imputed to be wealthy to the extent that it would place him at risk of harm by the Taliban. 45 The first passage in the ITOA on which the appellant relies - that the appellant's family owns "67 gerbils of land" - is uncontentious. The Assessor implicitly accepted the appellant's submission that it constitutes "a lot" of land. 46 The second passage - that the appellant's family is wealthy and are well placed to support him - appears under the heading entitled "Procedural Fairness" and a sub-heading "Adverse information put to the claimant". The paragraph is as follows: The UNHCR Eligibility Guidelines for Afghanistan stated the extended family was a coping mechanism and families were relied on to provide accommodation and an adequate level of subsistence. The Claimant asserted he had no extended family in Afghanistan and had an extended family to care for. There were logistical and practical difficulties in relation to relocating the Claimant's family to Kabul and it was unreasonable in the circumstances. However, I noted that the Claimant's brothers are all of work age and are well educated. I also noted that the Claimant's family is wealthy and have a lot of experience operating businesses and leasing properties for businesses, and are well placed to offer support to the Claimant. 47 The appellant had submitted that he would have difficulty in subsisting if returned to Afghanistan, including because he would not have the support of his extended family if he had to live and work around Kabul. The Assessor did not accept that, for reasons including that the Assessor considered the appellant would be supported by his family. In context and on a fair reading, the Assessor's reference to the wealth of the appellant's family was only to the extent that his family had sufficient wealth to support him so that he would be able to subsist if he was returned to Afghanistan. The Assessor did not find the appellants' family to be so wealthy that the appellant would inevitably show wealth or be perceived to be wealthy on return to Afghanistan. Nor did the Assessor find that the appellant was in fact wealthy. Rather, the Assessor's finding that the appellant could subsist in Kabul because he had the support of his extended family points away from concluding that the Assessor found that the appellant is in fact wealthy. The appellant would not require the support of his extended family if he was. 48 The third passage upon which the appellant relies - that the appellant was raised in a successful business family that operated a car sales business and taxi business - appears in the context of an assessment as to the situation for Hazaras in Kabul. The Assessor concluded that because the appellant's family and the appellant had experience in small business, such as a car sales business and a taxi business, there would be self-employment opportunities for the appellant in Kabul. The Assessor's finding that the appellant would be able to work as a self-employed taxi driver or in some other small business involving sales or customer service is not a finding that the appellant would, in fact, be wealthy. 49 Second, the appellant's contention on appeal rests on the proposition that he is, in fact, wealthy (or was found to be so by the Assessor) when that is not a claim which he had ever made. Indeed, he claimed the very opposite. He said that if returned to Afghanistan he would find it very difficult to subsist, including in: (a) his submissions dated 14 August 2015 which said that: The Claimant has no land, family connections or other supports that would enable him to subsist elsewhere in the country. … The Claimant would be without family support in Kabul, he would be homeless, unemployed and destitute. (b) his statutory declaration made 7 August 2015 which said that: I cannot just stay inside my village or Jaghori because I cannot survive in this way. I cannot survive from farming our land. Most people in Jaghori need to leave for work or to get things they need - even food. I also needed to leave for work to support my family and driving a taxi was a way that I could do this. … I have never lived in Kabul. I have no land or family in Kabul. I have no work in Kabul and do not know how I would support myself or my family. My family and I would be homeless, we would have no access to services and there would be no-one to help us. 50 The appellant did not at any stage advance a claim that he is, in fact, wealthy, or that he would be perceived as wealthy because of his family's circumstances. The appellant's case in respect to the imputation of wealth went no further than asserting that he could be perceived as wealthy because on return to Afghanistan he would be a Hazara returning from the west, and thus faced a risk of being kidnapped and held for ransom. That claim was expressly considered by the Assessor and rejected. 51 Third, on a fair reading of the ITOA the Assessor rejected the appellant's relevant claim for protection upon the basis that while the Assessor accepted that the Taliban may target people travelling on the roads outside of Kabul if they appear to be wealthy, the appellant had not previously demonstrated any such characteristic, did not have that characteristic and therefore would not face an increased risk of kidnapping in the future. At the same time, the Assessor concluded that the appellant's family had sufficient land and wealth that the appellant would be able to subsist if returned to Afghanistan. The former finding is a rejection of the appellant's claim to have a well-founded fear of being kidnapped by the Taliban, the latter is a rejection of the appellant's claim that it was not reasonable for him to relocate to Kabul because he could not subsist there. I do not accept that the reasoning behind those findings is illogical, let alone that it rises to the "extreme" illogicality required to establish the ground: ARG15 at [47]. 52 The ITOA considered the relevant country information and accepted that people in certain classes faced an increased risk of kidnapping, including people perceived to be wealthy. But it was open to the Assessor to conclude that there was no evidence that the appellant had ever been perceived as wealthy, including because he had been stopped by the Taliban while travelling in his taxi in 2009. The appellant describes the asserted finding that he is, in fact, wealthy as "incongruous" with the finding that he would not be imputed or perceived to be wealthy, but that involves: (a) an acceptance that the Assessor found that the appellant was, in fact, wealthy, which the Assessor did not; and (b) the unstated assumption that how the appellant would be perceived by the Taliban and others could not differ from the reality. It was not illogical to conclude that the appellant (who had previously been a self-employed taxi driver and had sufficient money or access to money to purchase a new taxi) had not in the past shown objective signs of wealth and would not do so in the future. 53 Fourth, I do not accept the appellant's alternative submission that the Assessor erred by failing to take into account a relevant consideration, namely that the appellant is, in fact, wealthy. The appellant did not develop this contention, but it fails for essentially the same reasons as the illogicality argument. Failure to take into account a relevant consideration can, of course, constitute jurisdictional error (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [24], [98]-[99] (Robertson J)) but the appellant did not claim to be wealthy and the Assessor did not find that he was, in fact, wealthy. This contention is just a re-packaging of the appellant's submission on illogicality, and must fail for the same reasons.

Conclusion 54 The appeal must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.