EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
 CSIH 59
OPINION OF THE COURT
delivered by LORD KINGARTH
under section 103B of the Nationality, Immigration and Asylum Act 2002
QU WEN CAI
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Act: Frain-Bell; Drummond Miller (Appellant)
Alt: Lindsay; Solicitor to the Advocate General (Respondent)
 This is an
appeal under section 103B of the Nationality, Immigration and Asylum Act 2002
against a decision (following reconsideration) of an Immigration Judge dated
 The appellant
is a citizen of
 In rejecting the appellant's claim for asylum the Immigration Judge found (at para. 23)
"There is ample evidence that many practitioners of Falun Gong have been persecuted. However, although the attitude of the authorities is rather erratic and unpredictable, mere 'low level' practitioners are not generally at risk".
He found further (at para. 25)
"The risk arising from past activities is ... said to be manifested through two police visits to his home either in mid 1999 or one then and one in 2000. The police on these occasions simply asked for him to report to the police station. This was at the time of the first crackdown on Falun Gong. They did not say that they proposed to detain him. They may have been interested in interviewing him as a witness, or in giving him a warning. If they seriously intended to detain him for a lengthy period, it is unlikely they would have explained to his wife the nature of their interest, or asked him simply to report. Whatever the position was then, there is no sign that they have followed up their interest since".
 Further, at paragraphs 26 to 29 it is said
"26. Crucially, there is no background evidence to suggest that people
known to have taken a low level part
in Falun Gong prior to the ban in 1999 are pursued today. The vast majority of those in such a position
27. Although Ms Byfield's evidence was heartfelt and interesting, it has no
connection with the individual aspects
of the Appellant's case and is of no relevance to the outcome. It is a courageous act for a
Appellant is an earnest practitioner of Falun Gong in the
There was an attempt to advance his
case on the basis that he might expose himself to risk in
29. The Appellant's account, even putting the highest realistic
interpretation on it, does not in my view disclose a need for protection."
 Before us counsel
for the appellant argued that the Immigration Judge had erred in law. In particular, although no issue was taken
with the finding that there was nothing to suggest that if the appellant
returned to China he would practice Falun Gong other than privately in his own
home, the conclusion of the Immigration Judge that the appellant could not be
said to have been at real risk of persecution could be said - in light of
certain passages in the objective evidence before him - to have been perverse. Reference was made to a U.S. Department of
State Report dated
"As recently as 2003, the Government continued its effort to round up practitioners not already in custody and sanctioned the use of high-pressure tactics and mandatory anti-Falun Gong study sessions to force practitioners to renounce Falun Gong. Even practitioners who had not protested or made public demonstrations of belief reportedly were forced to attend anti-Falun Gong classes or were sent directly to re-education-through-labor-camps, where in some cases, beatings and torture reportedly were used to make them recant. These tactics reportedly resulted in large numbers of practitioners signing pledges to renounce the movement".
In addition reference was made to a passage in a U.S.S.D. Religious Freedom Report 2003 where it was said
"The Government continued its repression of groups that it determined to be 'cults' in general and of the Falun Gong in particular. The arrest, detention and imprisonment of Falun Gong practitioners continued. Practitioners who refuse to recant their beliefs are sometimes subjected to harsh treatment in prisons and re-education-through-labor-camps. There have been credible reports of deaths due to torture and abuse".
Finally, reference was made to a passage in a Canadian I.R.B.
"The 610 Office is a bureau specifically created by the Chinese Government to persecute Falun Gong, with absolute power over each level of administration in the Party, as well as all other political and judiciary systems".
The appeal should be allowed and the appellant's claim remitted to the A.I.T. for reconsideration.
 Counsel for
the respondent's primary submission was that it could not be said that the
Immigration Judge had erred in law.
There was nothing in the passages referred to which amounted to evidence
from which it could be said that the relevant conclusion which the Immigration
Judge reached was perverse. This was the
test that had to be met. Reference was
made to R (
"However our first conclusion as to risk, from the objective evidence as a whole, is that, apart from special factors, there will not normally be any risk sufficient to amount to 'real risk' from the Chinese authorities for a person who practices Falun Gong in private and with discretion".
This was consistent with observations made earlier (in the same application) in the Court of Appeal in L (China) v Secretary of State for the Home Department  E.W.C.A. Civ. 1441, at para. 33, where reference was also made (at para. 31) to a decision, apparently to the same effect, of the Federal Court of Australia in 2002. Counsel's secondary submission was that, in any event, since the Immigration Judge had decided, for reasons relating to his credibility, that the appellant "has not persuaded me that he is subjectively in fear of persecution" (para. 35) (a decision not challenged in this appeal), the appeal in respect of claimed asylum, which depended, in the first place, on the existence of a subjective fear of relevant persecution, could not succeed.
 Having carefully considered the submissions made on behalf of the appellant, and the passages in the background materials to which we were referred, we have come to the view that this appeal must be refused. Neither the passage in the U.S.S.D. Religious Freedom Report 2003, nor that in the Canadian I.R.B. Report, does anything other than confirm that practitioners of Falun Gong may, in certain circumstances, be subject to persecution. The Immigration Judge did not purport to find otherwise (see in particular paras. 23 and 26 of his decision). The passage in the U.S. State Department Report is different, in that it appears to suggest that there had been reports that even some practitioners who had not made public their beliefs had suffered ill-treatment. However, in our view, the passage, which lacks detail - for example as to the numbers involved or as to how the authorities became involved - falls far short of being evidence to the effect (or from which it could be concluded) that, in general, those who practice discreetly in private could be said to be at real risk of persecution. In these circumstances we are unable to say that the decision which the Immigration Judge made in this case, which was apparently consistent with that reached in LL (Falun Gong - Convention reason - Risk) China CG, could be said to have been perverse.
 We add only that, in any event, counsel for the appellant appeared (in a brief response) to have no obvious answer to the respondent's secondary submission.