RDYQ v Minister for Immigration and Citizenship

1. The applicant is a dual citizen of the United States of America and Canada. He applied for a protection visa in Australia on 18 September 2024. The applicant claimed that he would face harm as a result of having to register on sex offender registers in the United States of America and Canada, which may be publicly accessible, following convictions for offences relating to child pornography in Australia.
2. On 17 October 2024 a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied to the Administrative Review Tribunal (Tribunal) for merits review of the delegate's decision and the Tribunal affirmed the delegate's decision on 27 November 2024. The Tribunal found that the applicant would not face a real chance of serious harm or a real risk of significant harm in Canada, and that he had not taken all possible steps to avail himself of a right to enter and reside in Canada. Section 36(3) of the Migration Act 1958 (Cth) (Migration Act) therefore applied and the Tribunal was not satisfied that Australia owed protection obligations to the applicant.
3. The applicant seeks judicial review of the Tribunal decision in the Court's jurisdiction under s 476 of the Migration Act.
4. For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error. The application for judicial review is therefore dismissed.

1. The applicant's application for judicial review was filed on 7 January 2025, outside of the time limit prescribed by s 477(1) of the Migration Act. On 26 August 2025 I made an order granting the applicant an extension of time to file his judicial review application and gave oral reasons for that decision, which have since been published in writing: see RDYQ v Minister for Immigration and Citizenship [2025] FedCFamC2G 1407.
2. The grounds set out in the application as filed on 7 January 2025 are (reproduced without alteration):
   1. In making his decision the the Tribunal's conclusion on the "steps" leading to a well-founded fear of persecution at [96], when one looks at the way those steps have been decided on the balance of probabilities at [82]-[83] leads to the conclusion that it has fallen into error.
   2. "Unlikely" is not the correct test. A fear may be well-founded for the purpose of the Convention even though persecution is unlikely to occur. 23 However, the mere use of the term 'likelihood' in the course of making a decision will not constitute an error of law, where this is an indication of the decision maker's process of reasoning in resolving disputed facts. It would however, constitute an error of law, if the standard of 'likelihood' was used as a substitute for the test of a well-founded fear of persecution.

24 MIEA v Wu Shan Liang & Ors (1996) 185 CLR 259 at 293-94; see also MIEA v Guo (1997) 191 CLR 559 at 576-6. That reference to likelihood in the context of factual findings will not necessarily amount to legal error was demonstrated in DZAAM v MIAC [2013] FCA 128 at [24] where the Federal Court held that the reviewer's characterisation of the risk to the applicant as 'highly unlikely' was a finding of fact from which the reviewer concluded that there was no real chance of harm to the applicant, rather than a misapplication of the real chance test.

However there is no basis for concluding that the Tribunal decided the "real chance" issue on the balance of probabilities. Nowhere in its reasons did the Tribunal use the term "balance of probabilities" in deciding the "real chance" issue. Nor did it make any findings or statements that imply or infer that it was deciding the issue of well-founded fear of persecution for a Convention reason on the balance of probabilities.

1. The applicant was self-represented at the time that he filed his original application. He subsequently engaged a lawyer to represent him in this proceeding. No amended application was filed after the applicant obtained legal representation. The applicant's assertion of jurisdictional error has been developed in written and oral submissions, which were based loosely on the grounds in the applicant's application, and I have considered the issues raised in those submissions.
2. The evidence before the Court comprises the court book filed by the Minister on 28 February 2025 and an affidavit of the applicant filed on 7 January 2025.

1. Although the judicial review application purports to set out two grounds, neither party in their submissions referred to ground 1 or ground 2. It is more convenient to address the issues raised in the applicant's application, written submissions and oral submissions thematically, consistently with the approach taken by the parties.
2. As I understand the applicant's case, the crux of his argument is that:

(a) the Tribunal was required to consider whether there was a real chance that the National Sex Offenders Register (NSOR) in Canada would become publicly accessible;

(b) the Tribunal was required to consider this issue separately not as part of a 'rolled-up' consideration with other issues; and

(c) in considering whether there was a real chance that the NSOR would become publicly accessible, the Tribunal was required to, but did not, apply the 'what if I am wrong test?'

1. Having regard to the matters raised in the submissions advanced by the parties, the issues for the Court's determination in this matter relate to:

(a) whether the Tribunal was required to 'disaggregate' the factual elements of the applicant's claims and consider whether there was a 'real chance' of each factual element occurring in the reasonably foreseeable future;

(b) whether the Tribunal was required to apply the 'what if I am wrong?' test in relation to its finding that the NSOR was not likely to become publicly available;

(c) whether the Tribunal appropriately took into account any doubt in its factual findings in determining whether the applicant faced a real chance of serious harm; and

(d) whether the Tribunal applied the wrong standard in assessing whether the applicant faced a 'real chance' of serious harm.

The approach taken by the Tribunal in this matter

1. The Tribunal accepted at [80] and [81] of its reasons that:

(a) if the applicant were to return to Canada, he would be required to register on the NSOR and, as a person who has been convicted of a sex offence outside of Canada, he would need to notify the Canadian police within seven days of his arrival in Canada;

(b) the information the applicant would provide for that registration is currently private and only accessible by law enforcement in Canada; and

(c) there is currently no public, open source information about the applicant's offending in Australia.

1. The Tribunal identified that it should consider the risk of harm if the applicant's information became publicly available on the NSOR, and the prospect of changes being made to the Canadian law that would make the NSOR publicly accessible. The Tribunal said at [95]:

In determining whether the applicant faces a real chance of harm or a real risk of harm, not only do I have to consider whether the applicant would face a real chance of harm or a real risk of harm if his information were made publicly available on the NSOR, I also need to assess the prospect of those changes being made to the NSOR occurring. Those are all matters that I consider and weigh in assessing whether I am satisfied that the applicant faces a real chance of harm or a real risk of harm.

1. The Tribunal considered the possibility of changes being made to the Canadian law, or funding being made available, to make the NSOR public at [82]-[83] of its reasons, where it said (footnotes omitted):
   1. I am satisfied that, at present, it is more likely than not that the Conservatives will win the forthcoming elections in Canada and form either a majority or minority government. I also accept that the existing legislative amendments passed by the Harper-led Conservative government that would enable the NSOR to be transitioned to public accessibility remain law, even if they were not utilised or funded by the Harper-led Conservative government or the incumbent Liberal government. The country information available to me does not support a conclusion that such a course of action is likely. In that regard, I refer to country information that suggests that the Conservative party could have, but did not, allocate funding for a public register when they were last in government. Having said that, I do not know why that funding was not made available and whether that reason would continue.
   2. I accept that there is a possibility, or prospect, that a Poilievre-led Conservative government would seek to fund changes to the NSOR to make it publicly accessible. However, whilst the applicant has been able to provide reports on what might be described as Poilievre's 'tough on crime' policies, including proposed amendments to sentencing and other aspects of the criminal law, no reports have been provided in which Poilievre comments on, or commits to, making the NSOR public. I have also not been able to locate any such reports. In those circumstances, I place some weight on the absence of Poilievre articulating a policy to bring about a publicly accessible NSOR in assessing the prospect of the applicant facing harm. I also place weight on the fact that the NSOR was not previously made public, despite the law permitting that being passed by the former Conservative government, as demonstrating that a publicly accessible NSOR is not almost certain or a foregone conclusion.
2. The Tribunal accepted at [88] that if the NSOR were made public, the information would likely become easier to access for the Canadian population, which could increase the prospect of harm to the applicant. The Tribunal expressly stated that it took this into account in its overall assessment.
3. The Tribunal then addressed circumstances particular to the applicant and the risk of harm if the NSOR is made public at [90]-[94] of its reasons. In these paragraphs, the Tribunal said (footnotes omitted):
   1. I acknowledge that I cannot know what information on the NSOR would be publicised. In view of the information about the ability of a layperson to attenuate their views when reading about a case that is 'less severe' I consider that if the applicant's offending were information that was made public, that would mitigate the risk he might otherwise face. I consider that had the applicant's offending involved direct harm to a person or sexual penetration of a minor, the prospect of vigilantism would be greater.
   2. The delegate referred to information about groups in Canada that collate information about sex offenders in that country. I have considered that information in making my assessment; however, as I have already found, there is no publicly available information about the applicant's offending.
   3. I have also considered the applicant's submission that because of his physical stature, he would be a more likely target for harm. The applicant is, he claims, 5 foot, 4 inches tall and weighs around 70-75kgs. Frankly, having seen him and without intending any disrespect, I accept that his physical stature is such that it would not provide him with any real protection or make an individual think twice before seeking to harm him.
   4. The risk that the applicant fears is not limited to physical harm or vigilantism. He also fears the ostracism and stigma attached to being a sex offender. The material relied on by the applicant, particularly that about the USA, makes clear that being known to be a registered sex offender can limit employment and housing opportunities and result in homelessness. I am prepared to accept that the applicant may face some stigma and ostracism if his status as a sex offender became known through the NSOR.
   5. I accept that the applicant has not lived in Canada since he was 4. I also find that he will, at least initially, live with his father. Whilst the applicant expressed a desire to not live with his father permanently because of personality clashes, I am not satisfied that would lead to the applicant becoming homeless if housing were not otherwise available to him. I accept that the applicant will face difficulties re-establishing himself in employment. Still, I am not satisfied that the applicant would be unable to overcome those difficulties. The applicant has been able to reestablish himself in Australia and, before that, moved overseas and worked and lived in both South Korea and Japan. Whilst the fact of the applicant's conviction may prevent him from working in some industries, I am not satisfied that there is a real chance that the applicant would be prevented from earning a living or his ability to subsist would be threatened in any way, either now whilst the NSOR is private or in the reasonably foreseeable future, including having regard to my assessment of the chance that the NSOR does become public.
4. The Tribunal then expressed its conclusions about whether the applicant faces a real chance of serious harm at [96]-[101] of its reasons. Most relevantly, the Tribunal said at [96]-[98]:
   1. Having considered the evidence and material before me and weighed up the sequence of things that need to occur for the applicant to face harm, the applicant has not satisfied me that he faces a chance of harm if he were to return to Canada. Whilst there is a prospect that the applicant would experience harm, the prospect of the applicant being harmed, whether because of his registration on the NSOR or otherwise, is remote. I do not accept that there is a real chance vigilantes will harm him or that he will be unable to obtain employment or housing.
   2. The country information available to me does not support a conclusion that the Canadian population is actively involved in vigilantism or would, if the register were made public, seek to engage in vigilantism. While there will always be groups of people in any society who seek to engage in vigilantism, I am satisfied that the risk to the applicant can be confidently described as remote.
   3. I am satisfied that the prospect of the applicant facing harm is remote. Not only does there need to be a confluence of events to occur for the applicant's information to become public, but there also needs to be a person sufficiently motivated to seek to harm the applicant based on his past offending. In relation to being unable to access employment, again on the assumption that the applicant's information was to become public, I am not satisfied that employers in Canada would routinely check the NSOR against potential job applicants or that they would refuse job applicants generally, or the applicant specifically, because of their presence on the NSOR, particularly without having regard to the nature of the offending that the person is said to have engaged in.

Was the Tribunal required to disaggregate the factual elements of the applicant's claim and consider whether there was a real chance of each factual element occurring in the future?

1. This issue was raised toward the end of the oral submissions advanced by Counsel for the applicant. However, it is convenient to address it first in this judgment.
2. Counsel for the applicant submitted that the Tribunal's reasons at [96]-[98] in relation to the application of the real chance test are problematic, because they express a conclusion that has been rolled up amongst a number of different threads. The paragraphs do not specifically deal with the prospect or the real chance of the NSOR becoming publicly available in the manner required by law. Counsel for the applicant submitted that, after addressing the specific NSOR issue at [90]-[91] of its reasons, the Tribunal then considered it with other matters in a rolled-up way. Counsel for the applicant submitted that what was required was a 'disaggregation of what are completely separate points so that you can logically properly look at the well-founded fear arising from one point when there are unrelated points'. Counsel for the applicant reiterated that the issue addressed at [90] of the Tribunal's reasons should have been assessed on its own.
3. Counsel for the Minister submitted that the Tribunal was not required to make any finding about the real chance that a particular event would occur. The Tribunal was not required to assess whether there was a real chance the NSOR would be made publicly available, and to disaggregate the factual elements of the applicant's claims in a way that considers at each stage or at each step of his factual claim, 'is there a real chance that this will occur?'. Rather, the Tribunal's task was to consider whether there was a real chance of harm occurring to the applicant for the reason he claimed.
4. I accept the Minister's submissions in relation to this issue.
5. The Tribunal's task was to consider whether the applicant met the requirements for the grant of a protection visa in s 36(2)(a) or (2)(aa) of the Migration Act. In considering whether the applicant would face a real chance of persecution amounting to serious harm, or a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Canada, the Tribunal was required to consider the claims advanced by the applicant.
6. Importantly, in the context of the refugee criterion, the 'real chance' relates to whether the applicant may face persecution or serious harm. In the context of the complementary protection criterion, the real risk relates to whether the applicant may face significant harm. Those assessments must be made taking into account the whole of the applicant's circumstances as found by the Tribunal.
7. The Tribunal was not required to assess whether there was a 'real chance' in respect of each factual element of the applicant's claims.
8. The authorities relied on by Counsel for the applicant in advancing this submission do not assist the applicant. Counsel for the applicant referred to the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 (Rajalingam) and to extracts of other judgments cited in Rajalingam. Counsel for the applicant referred to an extract from Thanh Phat Ma v Billings (1996) 71 FCR 431; [1996] FCA 1121, cited at [48] of Rajalingam, where Drummond J expressed the view that in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, Kirby J was concerned to explain that:

unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.

1. Counsel for the applicant also referred to Sackville J's comments at [49]-[50] of Rajalingam, where his Honour said:
   1. On this analysis, Kirby J was directing attention to a case where the decision-maker finds that none of a series of claims is established, yet the evidence taken as a whole justifies or might justify the conclusion that the applicant has a well-founded fear of persecution. In theory, such a case can readily be imagined. An applicant may rely, for example, on three separate acts of persecution directed at her by reason of imputed political opinion. Each act of persecution, if it had occurred, would strongly suggest that she is at serious risk of a further act of persecution for the same reason. ...
   2. With respect, Drummond J's observations are helpful because they identify a second class of case in which, although the decision-maker finds that alleged past events have not occurred, the chance that they might have occurred could provide a rational foundation for finding that the applicant has a well-founded fear of persecution. A practical difficulty is that factual assertions made by applicants for refugee status concerning their own experiences can rarely be assessed independently of each other.
2. These extracts explain why, in considering whether an applicant faces a real chance of persecution, the decision-maker may be required to cumulatively consider separate aspects of an applicant's claims. Each individual claim, considered by itself, may not give rise to a real chance of persecution, but when the claims are considered cumulatively they may give rise to a real chance of persecution. That is not what the applicant is submitting in the present case. The applicant has relied on these extracts to submit that the Tribunal should have disaggregated the consideration of the separate factual elements of the applicant's claims, rather than consider the whole of the claim in assessing whether the applicant faced a well-founded fear of persecution. The extracts do not support that approach.
3. In this case, the Tribunal was not required to consider whether there was a 'real chance' that the NSOR would become publicly accessible. Rather, as it acknowledged at [95] of its reasons, the prospect of the NSOR becoming publicly accessible was one of the factors relevant to its consideration of whether the applicant would face a real chance of serious harm or a real risk of significant harm.

Was the Tribunal required to apply the 'what if I am wrong test?' in relation to its finding that the NSOR was unlikely to become publicly available?

1. The applicant submitted that the Tribunal did not correctly consider whether there was a 'real chance' that there would be changes to the NSOR in Canada, to make the NSOR publicly available, that would result in a well-founded fear of persecution on the part of the applicant. The applicant submitted that the Tribunal was 'riddled with doubt' as to whether the NSOR would not be made publicly available but failed to consider the 'what if I am wrong?' test and engage in reasonable speculation about the 'real chance' of persecution that goes beyond the future likelihood of an occurrence.
2. I have found above that the Tribunal was not required to consider whether there was a 'real chance' that the NSOR would become publicly accessible. However, it remains appropriate to consider the applicant's submissions in relation to the 'what if I am wrong?' test in relation to the Tribunal's finding that it was unlikely that the NSOR would become publicly available.
3. The 'what if I am wrong?' test was explained by Sackville J in Rajalingam at [62]:

When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution.

1. Expressed slightly differently, the 'reasonable speculation in which the decision-maker must engage [in determining whether an applicant has a well-founded fear of persecution] may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not': Rajalingam at [63].
2. I accept the Minister's 'preliminary point' that the 'what if I am wrong?' test does not apply to the predictive exercise undertaken by the Tribunal. The Minister submitted that the Tribunal is not required to consider, 'what if I am wrong about my future prediction?', because the possibility of being wrong is accommodated within the real chance analysis. In advancing this submission, the Minister relied on S v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 575; [2000] FCA 735 (S v MIMA), where Heerey J said at [29]:

When the RRT approaches its task in accordance with the law as laid down in those authorities, there is no room for the application of a further doubt-generating test such as ''What if I am wrong?''. Being human, the RRT may err, as may any decision-maker, or judge, or jury. But dwelling on the consequences of error is at best an irrelevant exercise and at worst calculated to distort the decision-making process. In any case, the decision in question involves an assessment of the likelihood of a future occurrence. Nobody can predict the future with absolute certainty. If the future event does occur, that does not in itself mean that the decision-maker was ''wrong'' in making an assessment that it would not.

1. Counsel for the applicant sought to distinguish S v MIMA on the basis that S v MIMA involved a situation where there was no evidence of the relevant facts, whereas the present case does not relate to any question about a non-existent fact. The critical finding of the Refugee Review Tribunal in S v MIMA was its lack of acceptance that the applicant was refused a passport for the reasons he claimed, relating to his political opinion, and that if he was refused a passport, it was for undisclosed reasons unrelated to the reasons claimed by the applicant. Justice Heerey observed that if the true reasons for being refused a passport were undisclosed, the Refugee Review Tribunal could not be expected to make findings of fact which ex hypothese were unknown to it: S v MIMA at [24].
2. I do not accept that the present case can be distinguished from S v MIMA in any meaningful way. The precise factual scenario is of limited consequence for the purposes of considering the observations made at [29]. I accept the submission advanced by Counsel for the Minister that the point in S v MIMA at [29] was one of general application and not limited to the particular factual scenario in which it arose.
3. At the hearing, Counsel for the applicant referred to numerous passages of Rajalingam to support a submission that the 'what if I am wrong test?' applies to findings about future events. I have considered the whole of the Rajalingam judgment, including but not limited to those passages to which Counsel for the applicant referred to in his oral submissions. However, I consider that focus of the judgment relates to doubts about findings of fact in relation to past events.
4. It is important to note, given the submissions raised by the applicant in this case, that Heerey J was not saying in S v MIMA that the Tribunal is entitled to disregard any uncertainty it has when predicting the likelihood of a future event. Rather, his Honour was noting that any doubt the Tribunal has is already incorporated into the 'real chance' test, as understood in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (Chan) and other authorities to potentially amount to a chance of harm that is below 50%.
5. Having made those general observations about the authorities, I then turn to the applicant's submissions about the Tribunal's findings in the present case.
6. Counsel for the applicant submitted that the relevant finding of the Tribunal in this case was that the government could have, but did not, allocate funding for the NSOR to become publicly accessible. The Tribunal expressed doubt by acknowledging that it did not know why the funding was not made available and whether that reason would continue.
7. Counsel for the applicant then submitted:

That is the expression of doubt that the tribunal was referring to. So in the present case, the question before this court continues to be, what is the real chance that the government in the future will allocate such funding for the NSOR to become publicly accessible? That is the first step in the real chance analysis. ... And the fact that the tribunal makes the finding that it is not likely is where the applicant says an error of law occurred. Now, it's important to note that the allocation of funding according to the tribunal, according to its own finding, is directly linked to the real chance of persecution.

But the tribunal, in our submission, never comes back to it to ask that question about "what if I am wrong?".

1. The Tribunal expressed no doubt about its finding that, in the past, the NSOR was not publicly accessible. Counsel for the applicant did not suggest that there was doubt about that particular finding in relation to a past event. The Tribunal made a passing observation that it did not know why the funding was not available or whether that reason would continue, but that did not amount to a finding to which it needed to apply the 'what if I am wrong?' test.
2. The Tribunal considered the country information and, based on that country information, was not persuaded that it was likely that the NSOR would become publicly accessible in the future. This was a prediction about what may happen in the future, relevant to the assessment of whether the applicant had a well-founded fear of persecution, and the Tribunal was not required to apply the 'what if I am wrong?' test, in the manner in which that test is explained in Rajalingam, to its prediction relating to the future.
3. To the extent that the applicant's submission is understood as an assertion that the Tribunal ought to have applied the 'what if I am wrong test?', as explained in Rajalingam, to any of its findings about the risk of future harm to the applicant, the submission is not accepted.
4. However, to the extent that the applicant's submission is properly understood as being that:

(a) in circumstances where the Tribunal considered it was unlikely, but possible, that the NSOR would be made public in the future;

(b) it was appropriate for the Tribunal to have regard to the possibility that the NSOR might become publicly accessible in engaging in reasonable speculation about possible future events for the purpose of assessing whether the applicant faced a real chance of serious harm or a real risk of significant harm,

the submission can be accepted. As discussed below, this is exactly what the Tribunal did in this matter.

Did the Tribunal appropriately take into account any doubt in its factual findings in assessing the chance of serious harm the applicant would face in Canada?

1. Despite finding that the NSOR was unlikely to be made publicly accessible, the Tribunal expressly considered the risk of harm to the applicant if the NSOR were to be become publicly accessible.
2. As can be seen from the summary of the Tribunal's approach set out above, in considering the risk of harm to the applicant if the NSOR were to become publicly accessible, the Tribunal considered a range of factors relevant to the possible circumstances of the applicant.
3. The Tribunal accepted and took into account that if the NSOR were made public, it could be easier for members of the Canadian public to access, which may increase the prospect of harm to the applicant.
4. The Tribunal acknowledged that it did not know what information on the NSOR would be publicised. The Tribunal found that there was not presently any publicly available information about the applicant's offending and expressed the view that if information about the applicant's offending was made public, it would mitigate any risk that he might otherwise face, because his offending did not involve direct harm to a person or sexual penetration of a minor, in which case the prospect of vigilantism would be greater. Counsel for the applicant submitted that the Tribunal ought to have recognised at this point that the risk to the applicant might be greater if he is simply lumped into the NSOR with no capacity to mitigate that risk because no further information is provided. With respect, this submission appears to be an invitation for the Court to review the Tribunal's reasons with an eye keenly attuned to the perception of error. The Tribunal's acknowledgement that it did not know what details would be included on the NSOR if made publicly available was appropriately factored into its overall consideration.
5. The Tribunal considered the applicant's submission based on his physical stature and accepted that the applicant's physical stature is such that it would not provide him with any real protection or make an individual think twice before seeking to harm him.
6. The Tribunal acknowledged the applicant's fear also included the ostracism and stigma attached to being a sex offender. The Tribunal was prepared to accept that the applicant may face some stigma and ostracism if his status as a sex offender became known through the NSOR.
7. The Tribunal found that the applicant would, at least initially, live with his father upon return to Canada. While the Tribunal acknowledged that the applicant did not wish to live with his father permanently, it was not satisfied that that would lead to the applicant becoming homeless if housing was not otherwise available to him. The Tribunal accepted that the applicant may face difficulty re-establishing himself in employment but considered the applicant would be able to overcome those difficulties, noting the applicant's ability to re-establish himself in Australia and two other countries. The Tribunal acknowledged that the fact of the applicant's conviction may prevent him from working in some industries, but was not satisfied there was a real chance the applicant would be prevented from earning a living or that his ability to subsist would be threatened in any way, even if the NSOR were made publicly accessible. The Tribunal did not consider that employers in Canada would routinely check the NSOR against potential job applicants or that they would refuse job applicants generally, or the applicant specifically, because of his presence on the NSOR.
8. Crucially, the Tribunal considered country information and found that the country information available to it did not support a conclusion that the Canadian population is actively involved in vigilantism or would seek to engage in vigilantism if the NSOR were to be made public.
9. Taking into account all of these factors, including the possibility that the information on the NSOR may become publicly accessible in the future, the Tribunal considered that the chance of the applicant facing serious harm was remote.
10. I accept the Minister's submission that the Tribunal's reasoning clearly shows that the Tribunal considered the risk of harm to the applicant if the NSOR were to become publicly accessible. The Tribunal therefore had regard to the uncertainty in its finding that the information on the NSOR was unlikely to become publicly accessible.

Did the Tribunal otherwise apply the wrong standard in assessing the real chance of harm faced by the applicant?

1. In his written submissions, the applicant also referred to the Tribunal's Guidelines on Refugee Law, which state that it would constitute an error of law if the standard of 'likelihood' was used as a substitute for the test of well-founded fear of persecution.
2. It is not precisely clear what error the applicant is asserting here, and it was not addressed in the applicant's oral submissions. However, having regard to the reference to this issue in the applicant's written submissions, and the applicant's pleaded ground, I proceed on the basis that the applicant is asserting that the Tribunal applied a standard of likelihood rather than applying the real chance test.
3. If this is what the applicant is asserting, the submission is not accepted. The standard of 'real chance', as explained in Chan, refers to a risk of harm that is real and not remote. It may be less than 50%.
4. As discussed above, the real chance test applies to the chance of persecution the applicant may face. The Tribunal may make findings about the likelihood of possible factual scenarios and take into account the likelihood of the various possible factual scenarios in applying the real chance test: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 575. The Tribunal in the present case found that the chance of harm to the applicant was remote and therefore the applicant did not face a real chance of serious harm or a real risk of significant harm. This finding was a proper application of the real chance test. Given that the real risk standard is the same as the real chance standard, it is also a proper application of the real risk test. The Tribunal has appropriately applied the relevant tests and did not proceed on the basis that the chance of serious harm to the applicant was likely or unlikely.

1. The applicant has not established that the Tribunal made any jurisdictional error in this matter. Therefore, the application for judicial review is dismissed.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.