Hojbota and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding the cessation of Disability Support Pension payments to the first applicant and Carer Payment and Allowance to the second applicant. The Secretary of the Department of Social Services had ceased these payments on the basis that the applicants had exceeded the maximum portability period prescribed by law. The applicants contended that they retained an accrued right to extended portability under the Agreement between Australia and the Republic of Austria on Social Security, as amended.

The AAT was required to determine whether the cessation of payments by the respondent was correct, and specifically, whether the applicants possessed an accrued right to extended portability under the relevant international agreement. The tribunal also considered whether the respondent had breached any legislatively defined procedure or common law duty of care in its dealings with the applicants.

The tribunal found that none of the exceptions to the maximum portability period applied to the applicants' circumstances. It further determined that the applicants had not acquired any rights under the International Agreement Act and its subsequent amendment, as the clear and unambiguous terms of the agreement specifically precluded such a finding. The tribunal concluded that the respondent had not breached any procedural or common law duties. Consequently, when the applicants exceeded their maximum portability periods on 18 August 2017 and 1 September 2017 respectively, their social security payments correctly ceased to be payable.

Accordingly, the tribunal affirmed the decision of the AAT made on 9 February 2018, which had previously upheld the respondent's decision to cease payments.