Kalbasi v The State of Western Australia

The High Court of Australia considered an appeal by Mr Kalbasi against the State of Western Australia concerning the validity of a detention order made under the *Migration Act 1958* (Cth). Mr Kalbasi, an Iranian national, had arrived in Australia seeking asylum and was detained pursuant to section 189 of the Act. He subsequently sought a writ of habeas corpus, arguing that his detention was unlawful. The primary dispute revolved around whether the Minister for Immigration had exercised the non-compellable, discretionary power under section 197D of the Act to grant Mr Kalbasi a visa, thereby rendering his detention unlawful.

The High Court was required to determine whether the Minister's power under section 197D to grant a visa to a non-citizen in immigration detention was a power that could be exercised by the Minister personally, or whether it was a power that could be exercised by a delegate. Further, the Court had to consider whether, if the power was exercisable by a delegate, the delegate had in fact exercised that power in relation to Mr Kalbasi. The central legal question was whether the failure to exercise this discretionary power meant that Mr Kalbasi's detention remained lawful under section 189 of the *Migration Act*.

The Court reasoned that section 197D conferred a non-compellable, discretionary power on the Minister, which could be exercised by the Minister personally or by a delegate. However, the Court found that the evidence did not establish that the Minister or a delegate had exercised this power in favour of Mr Kalbasi. Consequently, the Court held that Mr Kalbasi's detention under section 189 of the *Migration Act* remained lawful, as the condition for release under section 197D had not been met. The appeal was therefore dismissed.