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

This matter concerned an appeal by Mr Mutlukaya against decisions of the Secretary of the Department of Social Services regarding his disability support pension (DSP). The core dispute revolved around whether Mr Mutlukaya qualified for unlimited portability of his DSP, given his absence from Australia and his residential status. The case was heard by C. J. Furnell SM.

The legal issues before the court were whether Mr Mutlukaya qualified for unlimited portability of his DSP, whether he was a 'severely impaired disability support pensioner', whether he had ceased to be an Australian resident, and whether the 'former resident rule' applied to his situation. The court was required to determine the effective date of any suspension or cancellation of his DSP.

The court found that Mr Mutlukaya had ceased to be an Australian resident when he left Australia in July 2020, meaning his portability period was zero days and his DSP should have ceased to be payable from that date. Furthermore, even if he had not ceased to be an Australian resident in July 2020, his DSP would have ceased to be payable due to the application of the "former resident rule," as he had previously ceased to be an Australian resident after leaving in 2015 and again became a resident upon his return in 2019. Consequently, his DSP was not payable from 15 July 2020. The court determined that the purported decisions to suspend and cancel his DSP did not take effect as intended. The decision under review was set aside and substituted.