What happened
Report Provider: The Guardian
Author: Amanda Meade
Date Covered: October 2024 (visa refusal), Wednesday (High Court ruling)
Australia’s high court has unanimously backed the government’s 2024 decision to refuse rightwing provocateur Candace Owens a visa to enter the country.The full bench of the court ruled on Wednesday that the minister’s denial did not infringe an implied constitutional freedom of political communication.
The home affairs minister, Tony Burke, in October 2024 refused Owens’ visa application ahead of a planned national speaking tour, arguing she had the “capacity to incite discord”.Burke said at the time the US conservative influencer and podcast host, who has advanced conspiracy theories and antisemitic rhetoric – including allegedly minimising Nazi medical experiments in concentration camps – did not pass the “character test” to receive a visa under the Migration Act.
A statement released by the court said: “The minister found that there was a risk of … [Owens’] controversial views leading to increased hostility and violent or radical action.”Owens, in court, sought a declaration that a section of the act was invalid or, alternatively, that the minister had misconstrued the act when refusing to grant her a visa.
Owens’ lawyers argued the character test was more likely to exclude non-mainstream political views that sparked division.Perry Herzfeld SC contended the threshold of “inciting discord” to reject a visa 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”, Herzfeld argued in the high court in May.But the judges on Wednesday “unanimously held that, reading the minister’s decision fairly and as a whole, the minister did not misconstrue [the act] in deciding to refuse to grant the visa,” a summary of the court’s judgment stated.
skip past newsletter promotionafter newsletter promotionThe court stated that the section Owens argued Burke had misconstrued “applies where, in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would stir up or encourage dissension or strife in the Australian community, or a segment of that community, of a kind or to a degree that is harmful to that community or segment.
”In October last year, Burke said: “From downplaying the impact of the Holocaust with comments about [notorious Nazi doctor Josef] Mengele through to claims that Muslims started slavery, Candace Owens has the capacity to incite discord in almost every direction. Australia’s national interest is best served when Candace Owens is somewhere else.
”The minister argued Owens met all relevant legal requirements to be issued a visa – except for the character test. Owens maintained that she satisfied all the requirements.The high court found Owens was not entitled to any relief and ordered her to pay the defendants’ costs. Owens and her Australian solicitors were contacted for comment.
Source coverage
Report Provider: The Guardian
Author: Amanda Meade
Deeper analysis
Full source content
Australia’s high court has unanimously backed the government’s 2024 decision to refuse rightwing provocateur Candace Owens a visa to enter the country.The full bench of the court ruled on Wednesday that the minister’s denial did not infringe an implied constitutional freedom of political communication.
The home affairs minister, Tony Burke, in October 2024 refused Owens’ visa application ahead of a planned national speaking tour, arguing she had the “capacity to incite discord”.Burke said at the time the US conservative influencer and podcast host, who has advanced conspiracy theories and antisemitic rhetoric – including allegedly minimising Nazi medical experiments in concentration camps – did not pass the “character test” to receive a visa under the Migration Act.
A statement released by the court said: “The minister found that there was a risk of … [Owens’] controversial views leading to increased hostility and violent or radical action.”Owens, in court, sought a declaration that a section of the act was invalid or, alternatively, that the minister had misconstrued the act when refusing to grant her a visa.
Owens’ lawyers argued the character test was more likely to exclude non-mainstream political views that sparked division.Perry Herzfeld SC contended the threshold of “inciting discord” to reject a visa 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”, Herzfeld argued in the high court in May.But the judges on Wednesday “unanimously held that, reading the minister’s decision fairly and as a whole, the minister did not misconstrue [the act] in deciding to refuse to grant the visa,” a summary of the court’s judgment stated.
skip past newsletter promotionafter newsletter promotionThe court stated that the section Owens argued Burke had misconstrued “applies where, in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would stir up or encourage dissension or strife in the Australian community, or a segment of that community, of a kind or to a degree that is harmful to that community or segment.
”In October last year, Burke said: “From downplaying the impact of the Holocaust with comments about [notorious Nazi doctor Josef] Mengele through to claims that Muslims started slavery, Candace Owens has the capacity to incite discord in almost every direction. Australia’s national interest is best served when Candace Owens is somewhere else.
”The minister argued Owens met all relevant legal requirements to be issued a visa – except for the character test. Owens maintained that she satisfied all the requirements.The high court found Owens was not entitled to any relief and ordered her to pay the defendants’ costs. Owens and her Australian solicitors were contacted for comment.
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