Controversial American commentator Candace Owens has experienced a legal setback in her attempt to visit Australia, as the country’s highest court has denied her appeal to overturn a previous visa rejection.

In October 2024, Australia’s Home Affairs Minister, Tony Burke, rejected Owens’ visa request, expressing concerns that her presence could “incite discord” during her planned speaking engagements throughout the country.

Owens contested the decision, claiming that the denial infringed upon her implied right to political communication.

Minister Burke’s refusal was based on his “reasonable suspicion” that Owens did not meet the character requirements necessary for entry.

He concluded that there was a potential risk of her causing “discord within the Australian community,” and that her entry would not align with the national interest due to her “controversial and conspiratorial views.”

Ms Owens’ lawyers argued the character test on which visa decisions are made was more likely to exclude non-mainstream political views by saying they sparked division.

Perry Herzfeld SC contended the threshold of “inciting discord” to reject a visa on character grounds was so broad it could capture disagreements and robust debates and was “very much in the eye of the beholder”.

This meant visas could be withheld from people who “will stimulate debate … the minister doesn’t like”, he argued in the High Court in May.

Legal provisions saying a person couldn’t attack Australian values were equally broad, he argued, saying the spectrum of what was an acceptable mainstream view changed over time.

However, the High Court held the visa refusal was justified and did not infringe on the implied freedom of political communication.

The decision was valid, with Owens ordered to pay the Commonwealth’s legal costs.

When refusing the visa, Burke took into account the commentator’s views on Muslim, Black, Jewish and LGBTQI communities and her use of online platforms to promote her views and ideology to foster division and fear.

Owens downplaying the impact of the Holocaust and claiming Muslims started slavery meant “Australia’s national interest is best served when Candace Owens is somewhere else”, the minister said at the time.

The Commonwealth contended she could encourage extremist behaviour, risk vilifying parts of the community or incite civil unrest if she were allowed into Australia and this constituted an unacceptable risk.

Court documents pointed to her being named in the manifesto of the man who claimed responsibility for a massacre at two New Zealand mosques.

The “incite discord” threshold to reject a visa on character grounds was intended to cover the more serious end of the spectrum, Solicitor-General Stephen Donaghue KC told the High Court during the May hearing.

Owens has more than 4.2 million subscribers on YouTube and 5.7 million on Instagram.