FEDERAL COURT OF AUSTRALIA

Kumar v Secretary, Department of Social Services [2017] FCA 158

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    This is the sixth in a long series of decisions concerning Mr Kumar’s claim for a disability support pension under the provisions of the Social Security Act 1991 (Cth) (the Act). In chronological order, the five earlier decisions were as follows:

(a)    in August 2013, a Centrelink officer rejected Mr Kumar’s original claim lodged on 1 May 2013;

(b)    in the same month, a Centrelink review officer affirmed the original decision;

(c)    in December 2013, the Social Security Appeals Tribunal affirmed the original decision;

(d)    in July 2014, a member of the Administrative Appeals Tribunal (the Tribunal) affirmed the Social Security Appeals Tribunal decision: [2014] AATA 442; and

(e)    in March 2016, a judge of the Federal Circuit Court dismissed an appeal from the Tribunal’s decision: [2016] FCCA 640.

2    Mr Kumar was self-represented throughout the above process and he has remained so in this appeal. As a consequence, he has been in the past, and was in this appeal, allowed considerable flexibility in presenting his arguments. Unfortunately, I consider that flexibility has resulted in a lack of focus in the presentation of his arguments and an expansion in the issues he has sought to raise. That has, in turn, caused a corresponding increase in the length of these reasons. Their length should not, however, be taken as a reflection of the merit of any of the matters raised by this appeal. As the following reasons demonstrate, there is none.

The grounds of appeal and other questions raised

3    After he filed his original notice of appeal, Mr Kumar amended it by filing a supplementary notice of appeal under r 36.10 of the Federal Court Rules 2011 (Cth). That document set out five lengthy grounds of appeal. To conveniently dispose of this appeal, it is necessary to set them out in full. They are as follows:

1.    The Primary Judge

(a)    erred in finding and/or declaring that subsection 94(2) of the Social Security Act 1991 is the definition of the phrase “Continuing Inability to Work” enshrined in S94(1)(c)(i). (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [16])

(b)    erred in finding and/or declaring that subsection 94(5) of the Social Security Act 1991 is the definition of the phrase “Program of Support”. (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [18] and [61])

(c)    erred in finding and/or declaring that Section 94(3C) of the Social Security Act 1991 defines when an applicant for a disability support pension shall be taken to have actively participated in a program of support for the purposes of s.94(2)(aa) of the Act. (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [50])

(i)    The phrase “Continuing Inability to Work” or “Inability to Work” is not defined in any legislation of the Commonwealth, State or Territory within the scope of the Social Security Act 1991.

(ii)    “Inability or Incapacity to work” has been held to be the reduced earning capacity of a worker in the open labour market reasonably accessible to the worker as a result of his or her injury (Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2, (1985) 155 CLR 171; Ric Developments t/as Lane Cover Poolmart v Muir [2008] NSWCA 155).

(iii)    If valid, the subsection 94(2) may only act as Facta Probantia to assist in establishing the Factum Probandum, “Continuing Inability to Work” as enshrined in S94(1)(c)(i) of the Social Security Act 1991.

(iv)    At least one of the attributes or values of the phrase “Program of Support” provided under the subsection 94(5) of the Social Security Act 1991 i.e. “work” means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage - is invalid by the virtue of subsection 16B of the of the Social Security Act 1991. If valid, workers who “work” at the floor value of “work” which is 15 hours per week on wages that are at or above the relevant minimum wage, cannot have “partial capacity to work within the meaning of subsection 16B of the of the Social Security Act 1991.

(v)    The existence or validity of Section 94(3C) is founded on the validity of Section 94(2)(aa) of the Social Security Act 1991. If Section 94(2)(aa) turns out to be invalid, there would be no relevance of Section 94(3C).

(vi)    It is against the principle of finality to conduct the hearing de novo to find “Continuing Inability to Work” when it has already been established pursuant to section 40 of the Workers Compensation Act 1987 (NSW) and Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.

(vii)    Similar to section 44(1) of the Administrative Appeals Tribunal Act 1975 which has been upheld in the decision, section(s) 350 and 351 of the Workers Compensation Injury Management Act 1998 (NSW) are also privative clauses, however have been vitiated by the decision. Despite being state laws they bind the commonwealth because of the provisions made in the legislative instrument Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011.

(viii)    If section 94(2)(aa) and/or 94(5) is/are valid, the time limit to assess facta probantia is - next two years from the date of a relevant claim pursuant to section 94(2)(a) and 94(2)(b) of the Social Security Act 1991. In a case where relevance of the phrase “work” is out of scope within this timeframe, the factum probandum “Continuing Inability to Work” considered established as enshrined in section 23(4B) of the Social Security Act 1991. Such pension claims are considered self manifested and no formula or probative evidence is further required.

(ix)    In case the factum probandum is not self manifested, section 94(2), if valid, should be read in conjunction with the section(s) 16B, 17 and 23(4B) of the Social Security Act 1991 as well as Social Security (Unsuitable Work) (DEWR) Determination 2006, Social Security (Unsuitable Work) (FaCSIA) Determination 2006 and other relevant regulations to make a correct decision.

(x)    For further avoidance of doubt, the phrase “Continuing Inability to Work” under 94(1)(c)(i) of the Social Security Act 1991 is directly equated with the supported wage system under 94(1)(c)(ii) of the Act. His Honour wouldn’t have erred had he referred to this formula or mechanism used in the section and the supported sage system handbook to set eligibility criteria for the pension and/or “Continuing Inability to Work”.

(d)    Failed to identify the correct legal test to answer the question question(s) of law raised before him.

(e)    Came to incorrect conclusion as a result of that.

(f)    Made an incorrect decision as a result of that incorrect conclusion.

2.    The Primary Judge

(a)    failed to identify and apply the correct legal test in answering the question(s) of law by applying that even if the applicant was fully incapacitated prior to the introduction of s.94(2)(aa), he had no right to have his pension application that was made in 2013 considered without reference to that subsection.” (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [42])

(b)    erred in finding that on any fair reading of ss.94(1)(c)(i) and 94(2)(aa) of the Act, Mr Kumar needed to demonstrate that he had actively participated in a program of support if he was to qualify for the grant of a disability support pension. (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [43]).

(i)    Contrary to the notion that a claimant has no accrued rights to claim a correct benefit under the Social Security Act 1991 if the claimant has made an incorrect claim Section 15 of the Social Security (Administration) Act 1999 declares:

For the purposes of the social security law, if:

(a)    a person makes an incorrect claim; and

(b)    the person subsequently makes a claim for a social security payment for which the person is qualified; and

(c)    the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that social security payment on the day on which he or she made the incorrect claim.

(ii)    Contrary to the notion that a person has an obligation to fulfil a requirement under a legislation, in particular when the legislation is neither in existence nor in sight, Section 7 of the Acts Interpretation Act 1901 including other things declares:

(2)    If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act ) or a part of an Act, then the repeal or amendment does not:

affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part;

(iii)    As a matter of natural justice or common sense, an obligation or requirement which is as physically demanding as a “Program of Support” cannot be enforced on a date when a law was neither in existence nor in sight. Retrospective requirements or legislation may be possible in other circumstances but not in this one.

(iv)    Going further, such specific obligation or requirement under the Act can only be imposed on a claimant and not on a stranger or any member of the public. A person who is not a claimant on a particular date remains obligation free from any such requirements on that date.

(c)    Failed to identify the correct legal test to answer the question(s) of law raised before him.

(d)    Came to incorrect conclusion as a result of that.

(e)    Made an incorrect decision as a result of that incorrect conclusion.

3.    The Primary Judge

(a)    Erred in finding or declaring that Mr Kumar was required to actively participate in a program of support within the meaning of s.94 of the Act to be eligible for a disability support pension and for that purpose, it did not matter, even if it was the case, that:

(i)    he was totally incapacitated for more than 18 months in the last 3 years of the relevant date of the claim within the meaning of s.94C of the Act;

(ii)    for the rest of the period he was in supported employment under New South Wales workers’ compensation legislation and/or within the meaning of s.94E(2) of the Act; and

(iii)    whilst he might of met the requirements of s.94(1)(da) of the Act so that he did not have to meet any participation requirements, that was immaterial to his claim to a pension. Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [55])

(b)    Failed to identify the legal test to answer the specific question of law that why the Secretary did not require the Applicant to participate in a Program of Support, despite many requests by the Applicant?

(i)    Any requirement, let alone a “Program of Support” cannot be imposed on a person if it can cause injury to the person. (Bradley v Commonwealth [1973] HCA 34)

(ii)    It is “self manifested” that a person has “Continuing inability to work” if the person is totally incapacitated for 18 months immediately prior to the claim.

(iii)    The Secretary does not warrant, in general, anyone to participate in such requirement, neither the Secretary has unfettered powers to impose such requirements.

(iv)    Supported employment within a state or federal legislation, is a “Program of Support” under the Social Security Act 1991.

(v)    Section 94(1)(da) provides temporary or permanent exemption criteria to a new claim.

(c)    Failed to identify the correct legal test to answer the question question(s) of law raised before him.

(d)    Came to incorrect conclusion as a result of that.

(e)    Made an incorrect decision as a result of that incorrect conclusion.

4.    The Primary Judge

(a)    erred in identifying the correct legal test in declaring that a program of support for the purposes of s.94(2)(aa) of the Act and a participation plan for the purposes of s.94(1)(da) and ss.94A – 94F of the Act are not the same thing. (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [48]).

(b)    erred in identifying the correct legal test in declaring that the phrases actively participated in a program of support and participation plan are not related. (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [50]).

(i)    So that the distinction between the two phrases can be made, both subsections – 94(5) and 94(2)(aa) of the Act must stand valid. Unfortunately they are invalid for the reasons mentioned above.

(ii)    “actively participated in a program of support” and “participation plan” go hand in hand under the Act.

(c)    Failed to identify the correct legal test to answer the question question(s) of law raised before him.

(d)    Came to incorrect conclusion as a result of that.

(e)    Made an incorrect decision as a result of that incorrect conclusion.

5.    The Primary Judge

(a)    erred in applying the correct legal test as he declared that most of these purported questions of law are not questions of law at all.

(b)    erred in not answering the questions of law when His Honour confirmed that at least one or some of the questions are “questions of law”. (Kumar v Secretary, Department of Social Services [2016] FCCA 640 at [64]).

(c)    erred in identifying and applying correct legal test by not confirming whether the questions of law responded by His Honour were “questions of law” for the purpose of the S44(1) of the AAT Act. In addition the answers to the questions of law were erroneous because of the reasons mentioned above.

(i)    Each of the eleven questions of law raised before his Honour were precise and pertinent to the subject matter of the appeal.

(ii)    The questions of law were raised were intended to seek validity of the requirements imposed by the S94 of the Social Security Act 1991 as well as the correct application of the valid parts of the Act based on the facts found.

(iii)    An appellant is prejudiced if he or she is not allowed to raise a question of law pursuant to S44(1) of the AAT Act.

(d)    Failed to identify the correct legal test to answer the question question(s) of law raised before him.

(e)    Came to incorrect conclusion as a result of that.

(f)    Made an incorrect decision as a result of that incorrect conclusion.

(Emphasis omitted; errors in original)

4    As he did before the Federal Circuit Court (see [2016] FCCA 640 at [28]), Mr Kumar sought to expand the issues he wished to agitate in this appeal beyond those he had outlined in his lengthy amended notice of appeal above. He attempted to do that in his written submissions by setting out 10 questions of law that he claimed were raised by the three issues that he, in turn, claimed were central to his appeal. Neither of these sets of claims proved to be accurate. To compound the difficulties associated with determining these claims, Mr Kumar’s written submissions did not correspond to his grounds of appeal. On the one hand, he raised matters that were not included in his amended notice of appeal and, on the other, he did not make submissions on some of the grounds that plainly were raised in that document. What follows is an attempt to identify, and dispose of, the myriad of issues Mr Kumar sought to argue in this appeal.

5    In his written submissions, Mr Kumar described the three central issues that he claimed arose in the appeal as follows:

7.    [F]irstly, whether every person who does not have “severe impairment” is required to participate in a program of support pursuant to s. 94(2)(aa) of Social Security Act 1991, secondly, the appellant did not participate in the program of support pursuant to WIM Act in the last 3 years of the DSP claim on 1 May 2013, and thirdly whether the appellant was denied natural justice.

6    He then outlined the 10 questions of law that he claimed arose from these three central issues, as follows:

A.    Whether the attribute or value of the phrase “work” under s.94(5) of the Social Security Act 1991 that “work means work that is for at least 15 hours per week”, is invalid by virtue of s.16B or s.96 of the Act because:

(i)    The meaning of “Work” and “Partial capacity to work” cannot be the same;

(ii)    It is inconsistent with the purpose and context of the Act.

B.    Whether the provision under ss.94(2)(aa) of the Social Security Act 1991 that every person who does not have severe impairment required to participate in program of support prior to claim, to be eligible for Disability support pension, is invalid because one or more, or all of the following reasons:

(i)    If implemented it may cause injury and therefore ultra virus (sic) s.75 of the Constitution;

(ii)    It is contrary to the virtue of ss. 51(xxiii) of the Constitution, s.28 of Social Security Administration Act 1999; and s.11 of Child Employment Act 2006 (QLD);

(iii)    It is contrary to the ss.16B, 17, 23(4B), 94(1)(d) and (96) of Social Security Act 1991;

(iv)    It is contrary to the s.7(2) of the Act Interpretations Act 1901 and/or ss. 12(2), 13 of Legislative Instruments Act 2003.

(v)    It is contrary to the principles of natural justice or common sense.

C.    Whether a person has “continuing inability to work” within the meaning of section 94(1)(c)(i) of Social Security Act 1991 on a date of Disability support pension claim if one or more of the following applies to the person:

(i)    The person has incapacity because an impairment or injury, for actually doing work, in the open labour market in which the person was working or reasonably be expected to work and the person wouldn’t be able to return to work in the next two years or more;

(ii)    The person’s work or labour is unsaleable or less saleable, in the open labour market, due to his or her injury or impairment in foreseeable future;

(iii)    The person’s actual earning post injury is/would be less than pre injury income, whether as received earnings or assessed as proper, or net remuneration/value of his or her labour to the business if the person is self employed, and remain so in foreseeable future;

(iv)    The injured person is unemployed and suitable work does not exist in Australia, or not available in reasonably accessible labour market, in foreseeable future;

(v)    The person is employed in “supported wage system” or “supported employment” within the meaning of s.7 of Disability Services Act 1986?

D.    If answer of the above question (Question C) is yes, whether the appellant satisfied any one or more conditions based on the evidence before the Tribunal and therefore satisfied s.94(c)(i) of the Social Security Act 1991?

E.    Whether a person is required to actively participate in a “program of support” to be eligible for Disability support pension within the meaning of s. 94(2)(aa) of Social Security Act 1991, on a date during the past 3 year period from the date of claim, e.g. on 2 May 2010 if the date of the claim is 1 May 2013, when one or more, or all of the following applies to the person:

(i)    The person has no “impairment” or “disability”;

(ii)    The impairments’ ratings are less than 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011;

(iii)    The person does not have “Incapacity to work” or “continuing inability to work”;

(iv)    The person is a child aged 13 years or the person’s age is over age pension age;

(v)    The person is not an Australian Resident within the meaning of s.94(1)(e) of the Act.

F.    Whether a person is required to actively participate in a “program of support” pursuant to s.94 of Social Security Act 1991 to be eligible for Disability support pension when one or more of the following applies to the person if:

(i)    The person has not claimed social security income support benefit or pension;

(ii)    The impairment’s rating for a single condition is 20 points or more under Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011;

(iii)    The person has a dependent child aged less than 6 years;

(iv)    The person is suffering from an illness or an accident;

(v)    Within six weeks prior to the date of confinement, if the person is an expectant mother, and within six weeks after the birth of child;

(vi)    The person is older than 35 years, e.g. one year younger than the age pension age;

(vii)    The person is employed in “supported wage system” or “supported employment” within the meaning of s.7 of the Disability Services Act 1986.

G.    Whether essential facts found by the Court/Tribunal which would have supported the decision to which the Court/Tribunal came, and if yes, whether those facts were based on evidence and fall within a statute properly construed?

H.    Whether a program of support is necessary, pursuant to s.94 of Social Security Act 1991 to determine continuing inability to work, and if yes, whether a participation plan under the Act can be a program of support and vice versa?

I.    Whether natural justice was denied to the appellant, or the Tribunal acted in excess of jurisdiction or without jurisdiction?

J.    Who should pay the costs of the Appeal?

7    The Secretary of the Department of Social Secretary (the Secretary), the respondent in this appeal, correctly claimed that some of the above issues and questions had not been raised before the Federal Circuit Court and Mr Kumar therefore required leave to raise them for the first time before this Court. In broad terms, those matters were:

(a)    the validity of s 94(5) of the Act (Question A above);

(b)    the validity of s 94(2)(aa) of the Act (Question B above); and

(c)    whether Mr Kumar was denied natural justice by the Tribunal (the third central issue and Question I above).

8    The Secretary opposed leave being granted to Mr Kumar to raise these three matters. After hearing from him at quite some length, I refused that leave. I did so on the grounds that: Mr Kumar had ample opportunity to raise these matters before the Federal Circuit Court; he had offered no satisfactory explanation as to why he had not done so; and none of these matters had any obvious merit. This refusal did not, it has to be said, significantly reduce the scope of the issues Mr Kumar attempted to raise in this appeal.

The factual background

9    The factual background to this appeal is conveniently set out in the reasons for decision of the Federal Circuit Court as follows ([2016] FCCA 640 at [6]–[12]):

6.    Mr Kumar suffered multiple work-related injuries on 31 January, 2001. Pursuant to an injury management plan, called a “Return to Work Plan” in the evidence before the Tribunal, he returned to work in or about July, 2001. He was referred to Commonwealth Rehabilitation Service for further assistance on 15 August, 2001.

7.    On 30 October, 2003 Mr Kumar was referred to Job Services Australia. He applied and enrolled in a Commonwealth supported (HECS) teaching course at the University of Western Sydney. The course went from February, 2005 to November, 2005. Sometime later on 29 May, 2009 Mr Kumar attended job search provider Mission Australia.

8.    In December, 2010 Mr Kumar secured Newstart Allowance, a benefit provided pursuant to the Social Security Act. To meet the conditions attaching to the continued receipt of that benefit, Mr Kumar attended Mission Australia appointments in January, 2011.

9.    The requirements of the Newstart Allowance seem to have influenced Mr Kumar to enrol in an Austudy course in early February, 2011. He attended a course until 2 December, 2011. His Newstart Allowance ceased and he commenced receiving another benefit called Austudy on 3 March, 2011.

10.    Mr Kumar suffered further exacerbation of his injuries on 15 May, 2011 while he was working as a taxi driver. He made a second workers’ compensation claim which was accepted. However, by reason of his injuries, on 14 August, 2011 he ceased employment and did not return.

11.    In mid-October, 2011 and again in early December, 2011 Mr Kumar inquired of Centrelink about claiming a disability support pension. His course of study had ended in early December, 2011 and his Austudy benefit had ceased. He commenced receiving Newstart allowance again.

12.    Mr Kumar lodged an application for a disability support pension on 1 May, 2013 …

Two important areas of common ground

10    Before describing how the Tribunal disposed of Mr Kumar’s application, it is convenient to note two areas that were accepted to be common ground before both the Tribunal and the Federal Circuit Court. First, near the outset of the Tribunal’s reasons, it noted that the qualifications for a disability support pension were set out in s 94 of the Act. It then stated ([2014] AATA 442 at [3]):

It is common ground that the applicant meets the age, residency and impairment requirements of that provision. The remaining requirement therefore is whether, at a relevant date, the applicant had a continuing inability to work as required by s 94(1)(c)(i) of the Act.

11    Section 94(1) of the Act provides:

(1)    A person is qualified for disability support pension if:

(a)    the person has a physical, intellectual or psychiatric impairment; and

(b)    the person’s impairment is of 20 points or more under the Impairment Tables; and

(c)    one of the following applies:

(i)    the person has a continuing inability to work;

(ii)    the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)    the person has turned 16; and

(da)    in a case where the following apply:

(i)    the person is under 35 years of age;

(ii)    the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;

(iii)    if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;

the person meets any participation requirements that apply to the person under section 94A; and

(e)    the person either:

(i)    is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)    has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)    is not an Australian resident; and

(B)    is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(ea)    one of the following applies:

(i)    the person is an Australian resident;

(ia)    the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

(ii)    the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

Note 1:    For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.

12    As the Tribunal then noted, the expression “continuing inability to work” in s 94(1)(c)(i) above engaged s 94(2), and particularly subsection (2)(aa), as follows:

(2)    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa)    in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

(a)    in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)    in all cases—either:

(i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).

13    This area of common ground was confirmed by the primary judge early in his reasons for decision where he stated ([2016] FCCA 640 at [15]):

The eligibility requirements for a disability support pension are set out in s.94 of the Social Security Act. There are many requirements. The Tribunal noted that the parties each agreed that Mr Kumar met all of those requirements save for one. At issue was the requirement set out in s.94(1)(c)(i) of the Act, namely that he had a continuing inability to work.

14    The second area of common ground was connected with the first. It concerned Mr Kumar’s assessed level of impairment. On this question, the Tribunal noted ([2014] AATA 442 at [2]) that:

The applicant suffers from bilateral knee conditions and a spinal disorder. These were assessed in a Job Capacity Assessment (“JCA”) Report dated 24 July 2013. The JCA assessor’s opinion was that the impairment from the applicant’s conditions each satisfied the 10 point level in Tables 3 and 4, respectively, in the Impairment Tables in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (“the Determination”). The correctness of those ratings was conceded by the applicant and by Mr Rick McQuinlan who appeared for the respondent. I am satisfied that those concessions were properly made. It is not disputed that, taken together, those ratings give the applicant a combined rating of 20 points.

15    To similar effect, the primary judge noted in his reasons for decision that ([2016] FCCA 640 at [23]):

The Tribunal found that Mr Kumar satisfied the age and residency requirements of s.94 of the Act. The Tribunal found that Mr Kumar suffered from bilateral knee conditions and a spinal disorder. Those conditions were assessed in a Job Capacity Assessment Report dated 24 July, 2013. The assessor’s opinion was that the impairment from Mr Kumar’s conditions each satisfied the 10 point level in Tables 3 and 4 respectively in the Impairment Tables in the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011. No issue was taken by Mr Kumar with that assessment or the impairment rating ascribed to his injuries. Taken together, those ratings gave Mr Kumar a combined rating of 20 points, but that was not sufficient for his injuries and impairment to meet the description of severe impairment for the purposes of s.94(3B) of the Act.

16    These two areas of common ground are connected because, as noted in the concluding sentence of the primary judge’s reasons above, Mr Kumar did not meet the description of “severe impairment” for the purposes of s 94(3B) of the Act and, as a consequence, s 94(2)(aa) (see at [12] above) required the Secretary to be satisfied that he had “actively participated in a program of support within the meaning of subsection (3C)”.

17    Sections 94(3B) and 94(3C) of the Act provide as follows:

(3B)    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

Example 1:    A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

Example 2:    A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

Example 3:    A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

…

(3C)    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection

18    Mr Kumar attempted to resile from these areas of common ground during oral submissions before me, claiming, as I understood him, that there was no evidence before the Tribunal to support them. Since there is no evidence before me to establish that this was so and, more importantly, because these matters were not raised by Mr Kumar in his amended notice of appeal, I rejected this attempt. I have therefore proceeded on the basis that these two matters are common ground in this appeal.

The Tribunal’s decision

19    To understand how the Tribunal disposed of Mr Kumar’s application, it is necessary, first, to set out the contentions Mr Kumar relied upon before it. They were as follows ([2014] AATA 442 at [7]):

The applicant submitted that he has endeavoured for years to participate in a POS [program of support] but has been thwarted in doing so by Centrelink officers. He attended appointments with a Job Service Provider, Mission Australia Employment Solutions (“Mission Australia”), and contended that this should be treated as a POS. Alternatively, he submitted that a return to work program he had undertaken in New South Wales as a part of his rehabilitation under that State’s compensation legislation should be treated by Centrelink as a POS for the purposes of the Act. Further, he submitted that medical certificates he had provided to Centrelink would be sufficient to excuse him from completing a POS. Other matters raised by the applicant were that s 94C of the Act operated to excuse him from undertaking a POS and that the Secretary should exercise his discretion to grant him the DSP.

20    Next, it is necessary to describe the evidentiary foundations for these contentions as they were outlined in the Tribunal’s decision, as follows:

(a)    The Job Service Providers, including Mission Australia ([2014] AATA 442 at [16])

In evidence were documents sent to the applicant by Mission Australia, the applicant’s Job Search Provider. These related to his seeking work whilst in receipt of the Newstart Allowance from Centrelink. They advised the applicant of appointment times with that organisation. His initial appointment was on Wednesday 14 March 2012 and subsequent appointments were advised for 2 April 2012, 3 May 2012, 15 May 2012, 16 May 2012, 17 May 2012, 4 June 2012, 31 July 2012, and 2 October 2012. The applicant moved from New South Wales to Queensland and a different Job Search Provider, Link Personnel, advised him of an appointment on 16 January 2014. The applicant’s evidence was that he attended few of those appointments but usually contacted the relevant organisation and advised that he had medical certificates to excuse him from seeking employment. When he attended, the officer with whom he spoke advised that he was excused from participating because of medical certificates held by Centrelink. However, he said that, on one such occasion with Mission Australia, he was provided with an appointment card which advised that he would be contacted by a person called “Van”. A copy of that card, which is undated, was in evidence. The applicant said that Van did not contact him. With Link Personnel, the applicant said that he enquired about being placed in a POS but was advised that he was not eligible because the JCA assessor had concluded that he had a capacity to work for only 0 to 7 hours per week.

(b)    The NSW worker’s compensation claim and the Return To Work Plan ([2014] AATA 442 at [13]–[14])

13.    The applicant was a taxi driver in Sydney. He last worked as such in August 2011. From January 2001 until December 2012, he received payments from the Workers Compensation Commission of New South Wales in accordance with the Workplace Injury Management and Workers Compensation Act 1998 (NSW). In those 12 years, he said, he was engaged in a return to work program, details of which were set out in a Return to Work Plan, dated 24 September 2001. Therein, the goal of the program is given as:

For Mr Kumar to return to his pre-injury duties as a casual taxi driver with Legion Cabs P/L in a part time / pre injury capacity.

14.    The agreed arrangement with the applicant was that he undertake the night shift from 3:00 pm to 3:00 am and that he be provided with a coccyx relief cushion. His evidence was that he reported to work when he was able to and would contact the cab company if he was not well enough to do so. The Return to Work Plan does not support the applicant’s evidence that it was of 12 years duration. In specific terms, it gives the dates of the program. There were two separate phases, each of two weeks duration from 24 September 2001 to 5 October 2001 and from 8 October 2001 to 19 October 2001.

(Emphasis in original)

(c)    The medical certificates ([2014] AATA 442 at [17])

… The applicant referred to his lodgement of many medical certificates to exempt him from participating in a POS. In evidence were Workcover NSW Medical Certificates dated 13 July 2011, 16 August 2011, 30 September 2011, 30 November 2011, 30 January 2012, 30 March 2012, 30 April 2012, 30 May 2012, 30 July 2012, and 18 September 2012 as well as Centrelink Medical Certificates dated 24 September 2012 and 12 November 2012. Each of those certified that the applicant was unfit for work for stated periods. …

21    The Tribunal succinctly rejected each of these contentions in the following terms:

(a)    The Job Service Providers, including Mission Australia ([2014] AATA 442 at [17]):

The applicant’s dealings with the Job Search providers were concerned with his continuing qualification for Newstart Allowance.

(b)    The NSW worker’s compensation claim and the Return To Work Plan ([2014] AATA 442 at [15]):

I am satisfied that this Return to Work Plan in New South Wales does not constitute a POS. It was not provided by a designated provider but, even if it were, the duration was clearly stated to be four weeks and not the required 18 months.

(c)    The medical certificates ([2014] AATA 442 at [17] and [18]):

17.    … while these may have had relevance to exemption from the activity test for Newstart Allowance, they could not excuse him from actively participating in a POS. …

18.    ... There are exemptions from the requirement of actively participating for the required 18 month period in a POS. These are set out above in Part 2 under ss 5(2), (3), (4), (5) of the Determination. None of those grounds for exemption was raised by the applicant and I am satisfied that these have no application in this matter.

(d)    The effect of s 94C of the Act ([2014] AATA 442 at [19]):

… that provision … is not concerned with a POS. Rather, it relates to participation plans made under ss 94A and 94B of the Act.

The Federal Circuit Court’s decision

22    By the time Mr Kumar reached the Federal Circuit Court, he had significantly expanded the matters he wished to raise. First, he sought to raise a series of contentions as follows:

2.    Whether I was required to participate in a “Program of Support” within the meaning of section 94 of part 2.3 division 1 of the Social Security Act 1991 and Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 to be eligible for the Disability Support Pension on the relevant date of claim when:

a)    I was totally incapacitated for more than 18 months in the last 3 years of the relevant date of the claim within the meaning of subsection 94C of the Social Security Act 1991.

b)    For the rest of the period I was in supported employment under workers compensation legislation (NSW) and/or within the meaning of subsection 94E (2) of the Social Security Act 1991.

c)    I fell within the exception of subsection 94(1)(da) at the material time.

…

3.    Whether sections 94(1)(d)(a) (sic), 94A, 94C and 94E of the Act applied to the Applicant and whether he was exempted under those sections.

4.    Whether sections 94A and 94C of the Act should be read alone to enable the Applicant to fall within the exceptions set out therein.

…

5.    Whether sections 5(2), (3), (4) and (5) of the Social Security (Requirements and Guidelines – Active participation for Disability Support Pension) Determination 2011 (“the Determination”) exempt the Applicant and if the Applicant falls within the exemptions set out therein.

(Emphasis in original)

23    Then, the primary judge noted that ([2016] FCCA 640 at [40]):

Mr Kumar’s lengthy written submissions tend to suggest that his case is that he was not required to participate in a program of support because:

a)    he was exempt from participation by reason of s.94(1)(da) of the Act;

b)    further, he was exempt by reason of ss. 94C and/or 94E of the Act; and

c)    in any event if he was required to participate in a program of support, the Secretary was obliged by the Act to provide him with a program of support and had not done so.

24    Next, the primary judge noted that Mr Kumar made submissions about the operation of s 94(2)(aa) as follows ([2016] FCCA 640 at [41]):

… He argues that the requirement in s.94(2)(aa) that a person must have actively participated in a program of support in order to have a continuing inability to work was introduced into the Act with effect from 3 September, 2011. And so it was: Family Assistance and Other Legislation Amendment Act 2011 (No 52 of 2011), Sch.3 cl.3. He further argues that he was fully incapacitated immediately before the commencement of s.94(2)(aa). That, he argues, means that he demonstrated that he had a continuing inability to work that was unaffected by the introduction of s.94(2)(aa) of the Act. Accordingly, the Secretary and the Tribunal should have considered his pension application without reference to s.94(2)(aa) and the Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 at all.

25    And, finally, the primary judge recorded that Mr Kumar sought to raise a further 10 questions, as follows ([2016] FCCA 640 at [62]–[63]):

62.    At paragraph 33 of his written submissions Mr Kumar identifies six ways in which he claims to have actively participated in a program of support for the purposes of s.94(2)(aa) of the Act. They are:

a)    participating in a return to work scheme on two occasions provided through Workcover NSW and its agents, Zurich Insurance, CGU Insurance and QBE Insurance;

b)    two occasions of Job Search Assistance provided to him by two different Job Service Providers, namely Mission Australia Employment Solutions Service and Link Personnel;

c)    participating in study funded by an Austudy Allowance; and

d)    participating in a rehabilitation program provided by the CRS Australia.

63.    The relevant remaining questions are these:

a)    From the Notice of Appeal:

1.    Whether a program can be considered a Program of Support within the meaning of section 94(5) of the Social Security Act 1991 (Cth) (“the Act”) despite:

a.    being undertaken for Newstart or Austudy or a similar program other than the Disability Support Pension;

b.    being undertaken for less than 18 months.

6.    Whether a Commonwealth Rehabilitation Services program constitutes a Program of Support within the meaning of the Act and the Social Security (Requirements and Guidelines-Active Participation for Disability Support Pension) Determination 2011 (Cth) (the “Determination”) and, whether the Applicant actively participated in, complied and completed this program.

7.    Whether the requirements and services offered by Mission Australia Employment Solutions Service, Link Personnel or other designated providers constituted a Program of Support within the meaning of the Act and the Determination and, whether the Applicant actively participated in this program.

8.    Whether the HECS funded course at the University of Western Sydney in 2005 and TAFE Course in Granville Sydney on or about 1 February 2011 to 2 December 2011 (“the Educational Courses”) and the Job Search Australia provided by Job Search Australia./Mission Australia Employment Solution Services located in Merrylands, Sydney on or about 30 October 2003 to 18 July 2004, 9 January 2008 to 13 April 2008 and 21 May 2009 to 26 June 2009 (“the Job Search Courses”) constituted a Program of Support within the meaning of the Act and Determination and, whether the Applicant actively participated in this program.

b)    From the Application in a Case:

1.    Whether I satisfied the conditions for the “Program of Support” within the meaning of section 94 of part 2.3 division 1 of the Social Security Act 1991(Cth) and Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 to be eligible for the Disability Support Pension on the relevant date of claim when:

a)    I [completed] the employment activities undertaken under the obligation towards the “Return to Work Plan” Workers Compensation Act 1987(NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) or within the meaning of subsection 94E (2) of the Social Security Act 1991 throughout until 14 August 2011 in the past 3 years.

b)    I completed “Program of Support” with designated Job Search provider, Mission Australia in the last 3 years of the relevant date of the claim even though the periods of such programs were less than 3 months.

c)    I undertook “Austudy course” [Inter alia page 157 of the T-documents] between the period 31 January 2011 and 2 December 2011.

3.    Whether I had a “continuing inability to work” on the relevant date of the claim to be eligible for Disability Support Pension within the meaning of 94(c)(i) of the Social Security Act 1991 when:

a)    When my assessed work capacity was 0-14 hours per week in the next two years on the relevant date of the claim.

b)    I undertook various programs of support as mentioned above in question 1a, 1b and 1c.

(Emphasis in original)

26    The primary judge rejected all of these contentions in a detailed and carefully considered set of reasons. In summary form, he held as follows:

(a)    as to the questions set out in [22] and [23] above, none of ss 94(1)(da), 94C and 94E applied because ([2016] FCCA 640 at [48]):

[T]he flaw in Mr Kumar’s argument is that a program of support for the purposes of s.94(2)(aa) of the Act and a participation plan for the purposes of s.94(1)(da) and ss.94A – 94F of the Act are not the same thing. His argument conflates the two and proceeds on the basis that when the Act speaks of a participation plan it is speaking of a program of support. But it does not.

(b)    as to the argument outlined in [24] above about the introduction of s 94(2)(aa) ([2016] FCCA 640 at [42]):

… Even if he was fully incapacitated prior to the introduction of s.94(2)(aa), he had no right to have his pension application that was made in 2013 considered without reference to that subsection. Despite Mr Kumar’s arguments to the contrary, s.7 of the Acts Interpretation Act 1901 (Cth) does not assist his argument.

(c)    as to the various remaining questions described in [25] above, the primary judge held that none raised a question of law and, as questions of fact, none was maintainable in substance or under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (see [2016] FCCA 640 at [70]–[72] and [76]–[77]).

27    Accordingly, the primary judge held that Mr Kumar had not demonstrated that the Tribunal had made any errors of law (or fact) in reaching its decision and therefore dismissed his application with costs.

Consideration of the grounds of appeal

28    As I have already mentioned above, Mr Kumar’s written submissions did not clearly correspond to the grounds stated in his amended notice of appeal and instead he sought in them to raise a number of unrelated issues and questions. As a consequence, those submissions were of little assistance in explicating the issues raised by his grounds of appeal. His oral submissions were similarly disconnected and discursive. In these circumstances, I consider the most appropriate course is to consider Mr Kumar’s grounds as stated in his notice of appeal (see at [3] above) because, in most cases, they identify the errors he claims the primary judge made by reference to specific paragraphs of the reasons for decision. I will then consider three questions which, while not expressly raised by Mr Kumar’s grounds of appeal, are matters that the Secretary was content to address. In this process, I will ignore those matters Mr Kumar has been refused leave to pursue (see at [8] above).

Ground 1(a)

29    This ground is directed to [16] of the primary judge’s reasons. In that paragraph, his Honour stated: “The meaning of the phrase continuing inability to work is defined in s.94(2) of the Social Security Act in the following way: …”. His Honour then set out that section, together with ss 94(3B) and 94(3C), both of which are mentioned in s 94(2). By this ground, Mr Kumar therefore appears to contend that s 94(2) does not apply to define the expression “continuing inability to work” for the purpose of s 94(1)(c)(i). If that is so, as the Secretary correctly submitted, this proposition was rejected in Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500; [2001] FCA 1811, where Kiefel and Dowsett JJ said (at [22]):

Obviously enough, subs 94(2) is intended to define the expression ‘continuing inability to work’ for the purposes of par 94(1)(c). It is of interest that the expression defined in s 94(2) is “a continuing inability to work because of an impairment”. Impairment is referred to in s 94(1)(a) and (b) but not in conjunction with the expression “a continuing inability work” in s 94(1)(c).

30    There is, therefore, no merit in this ground.

Grounds 1(b) and 1(c)(iv)

31    These two grounds appear to raise a question about the application of s 94(5) of the Act. They rely upon what the primary judge said at [18] and [61] of his decision. In the former, the primary judge stated that s 94(5) of the Act “defines the phrase program of support for the purposes of the Act”. His Honour then set out that section. In the latter, after referring to the expression “actively participated in a program of support” for the purposes of s 94(2)(aa) of the Act, his Honour merely said “I have set out the definition of program of support above.” Section 94(5) of the Act relevantly provides:

In this section:

program of support means a program that:

(a)    is designed to assist persons to prepare for, find or maintain work; and

(b)    either:

(i)    is funded (wholly or partly) by the Commonwealth; or

(ii)    is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

32    Plainly enough, s 94(5) defines the expression “program of support” for the purposes of s 94 generally, and its use in s 94(2)(aa) specifically. There is, therefore, no error in either of the primary judge’s statements above. It follows that there is no merit in this ground.

Ground 1(c)

33    Putting aside the invalidity arguments ((1)(c)(v) to (1)(c)(x) inclusive) which Mr Kumar has been refused leave to pursue in this appeal, in this ground, Mr Kumar appears to have gathered a number of arguments in support of grounds 1(a) (as to 1(c)(i) to 1(c)(iii) inclusive) and 1(b) (as to 1(c)(iv)). I have already addressed the question raised by ground 1(c)(iv) above. As to the matters in raised in 1(c)(i) to 1(c)(iii) (inclusive), the concept of incapacity for work for the purposes of workers’ compensation legislation, as explained in decisions such as Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, is entirely irrelevant to the matters about which the Secretary has to be satisfied for the purposes of s 94(2) of the Act. In particular, the expression “inability to work” takes its meaning from ss 94(2) to 94(5) and not from the concept of incapacity for work for the purposes of workers’ compensation legislation.

34    However, the reference to [50] of the primary judge’s decision in ground of appeal 1(c) appears to raise a different issue. In that paragraph, the primary judge stated:

Section 94(3C) defines when an applicant for a disability support pension shall be taken to have actively participated in a program of support for the purposes of s.94(2)(aa) of the Act. But the phrases actively participated in a program of support and participation plan are not related. The use of actively participated in s.94(3C) does not call up or otherwise engage with the phrase participation plan in ss.94A – 94F of the Act as Mr Kumar seemingly suggests that it does.

35    This reference therefore appears to challenge the primary judge’s conclusion that a program of support and a participation plan are not to be equated. If that is so, I consider this challenge fails for the detailed reasons given by the primary judge in his reasons for decision ([2016] FCCA 640 at [45]–[57] inclusive). That reasoning is summarised at [50] of the reasons which is set out immediately above. There is also the similar summary at [48] of the reasons set out at [26(a)] above. The distinction between a program of support and a participation plan is clearly and accurately explained in both of these summaries. I do not therefore consider ground of appeal 1(c) has any merit. Since the remaining paragraphs of ground 1, namely paragraphs 1(d), 1(e) and 1(f), merely re-state the alleged errors above in different forms, the issues raised by those paragraphs must also be dismissed for the same reasons.

Grounds 2(a) and 2(b)

36    These two grounds focus on what the primary judge said at [42] and [43] of his reasons. The former paragraph is already set out at [26(b)] above. In the latter paragraph, the primary judge stated:

On any fair reading of ss.94(1)(c)(i) and 94(2)(aa) of the Act, Mr Kumar needed to demonstrate that he had actively participated in a program of support if he was to qualify for the grant of a disability support pension. In my view no other construction is fairly open on the text of those subsections.

37    These paragraphs dispose of Mr Kumar’s contention described at [24] above relating to the introduction of s 94(2)(aa) to the Act on 3 September 2011. In holding that Mr Kumar was required to comply with s 94(2)(aa) when he made his application in 2013, even if he was fully incapacitated prior to the introduction of that section on 3 September 2011, the primary judge was plainly correct. It follows that these grounds, and grounds 2(c) to 2(e) (inclusive), which state the same proposition in different terms, have no merit.

Grounds 3 and 4

38    These two grounds of appeal raise the same issues. They are essentially the same issues as those addressed at [35] above. They focus on the primary judge’s reasoning at [48], [50] and [55] of his reasons. The former two paragraphs are already set out above at [26(a)] and [34], respectively. At [55], the primary judge stated:

So, in answer to this question posed by Mr Kumar in his Application in a Case, in my view Mr Kumar was required to actively participate in a program of support within the meaning of s.94 of the Act to be eligible for a disability support pension. For that purpose, it did not matter, even if it was the case, that:

a)    he was totally incapacitated for more than 18 months in the last 3 years of the relevant date of the claim within the meaning of s.94C of the Act;

b)    for the rest of the period he was in supported employment under New South Wales workers’ compensation legislation and/or within the meaning of s.94E(2) of the Act; and

c)    whilst he might of met the requirements of s.94(1)(da) of the Act so that he did not have to meet any participation requirements, that was immaterial to his claim to a pension.

39    As I have already mentioned above, the statements in these paragraphs form part of the reasoning process the primary judge employed in rejecting Mr Kumar’s attempt to rely upon (among others) s 94(1)(da) of the Act. As the primary judge explained clearly and comprehensively at [45]–[57], the provisions of ss 94(1)(da) and 94A to 94F inclusive relate to “participation plans” and such plans involve an entirely different statutory concept to “programs of support”. None of those sections is therefore relevant to the question whether Mr Kumar actively participated in a program of support for the purposes of s 94(2)(aa), as defined in s 94(5) of the Act. These two grounds of appeal, therefore, have no merit.

Ground 5

40    This ground of appeal challenges the conclusion the primary judge reached at [64] of his reasons as follows:

In my view, most of these purported questions of law are not questions of law at all. But even if I am wrong about that, an answer to those questions will not assist Mr Kumar in this application.

41    Thereafter (from [65]–[73]), the primary judge turned to consider whether the Tribunal made any error, whether of fact or law, with respect to the questions and concluded (at [73]) that it had not. No error is apparent in any of that reasoning. It follows that, whether the questions were questions of law or fact, the primary judge dismissed them because they lacked merit. He did not fail to consider any of those questions solely on the ground that they did not raise a question of law for the purpose of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). I do not therefore consider that this ground has any merit.

Consideration of the remaining questions

42    As is mentioned above, Mr Kumar was refused leave to raise questions A, B and I (set out at [6] above) for the first time in this appeal (see at [8] above). In the course of considering Mr Kumar’s five grounds of appeal, I have coincidentally dealt with questions C (in considering ground 1), D and G (in considering ground 5) and H (in considering grounds 3 and 4). Question F is foreclosed by the areas of agreed common ground before the Tribunal and the Federal Circuit Court (see at [10]–[15] above). However, to the extent that question F raises the issue whether s 94 places an obligation on a person to actively participate in a program of support, I will consider that matter below. Question E is also foreclosed for the same reason. However, I will consider the meaning of s 94(2)(aa) with respect to the three year period question which appears, at least inferentially, to be raised by that question. That leaves the question of costs raised by question J, which I will also deal with below. I will consider these three remaining questions in alphabetical order.

Question E – the relevance of the three year period

43    Mr Kumar did not raise the exemption contained in the Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011 before the Tribunal (see [2014] AATA 442 at [18] set out at [21(c)] above). However, it is clear that he did raise this question before the Federal Circuit Court (see [2016] FCCA 640 at [38] set out at [22(2)] above). The primary judge dealt with this question in two ways. First, he dealt with it as a question of construction. He expressed that question in the following terms ([2016] FCCA 640 at [44]):

However, Mr Kumar’s question, as framed by him, suggests that he was “exempted” from the requirement imposed by s.94(2)(aa), by ss.94(1)(da), or 94C or 94E of the Act, or all three.

44    His Honour then proceeded to consider that question of construction (at [45]–[57]) and, in that process, answered the question in the negative at least twice: at [48] and [55] (set out at [26(a)] and [38] above, respectively). As I have stated above (see at [39]), there is no error apparent in those conclusions. Secondly, the primary judge dealt with this matter as a question of fact. He did so near the conclusion of his reasons as follows ([2016] FCCA 640 at [76]):

The Tribunal’s findings of fact relating to the Return to Work Plan are fatal to Mr Kumar’s argument based upon these clauses. Even if the Return to Work Plan constituted a program of support for the purposes of the Act, it was undertaken and completed by Mr Kumar well before the 36 month period immediately preceding his claim. It could not be a program of support for relevant purposes.

45    His Honour’s conclusion above was one of fact, not a conclusion on a question of law. As such, it was not a question that Mr Kumar could agitate in an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92. It follows that question E does not demonstrate any error on the part of the primary judge.

Question F – does s 94 impose an obligation?

46    The primary judge dealt with this question at [43] of his reasons. That paragraph is already set out above at [36]. In oral submissions, Mr Kumar argued that “no one is required to participate in a program of support prior to claiming or becoming eligible for the disability support pension”. This submission is strictly correct, but it misstates the primary judge’s conclusion on this question. His Honour did not find that the Act placed a positive obligation on a person to participate in a program of support. Rather, he found that, under ss 94(1)(c)(i) and 94(2)(aa), participation in such a program was a necessary qualification for the grant of a disability support pension. This conclusion is consistent with the text of those sections of the Act (set out at [11] and [12] above), which places an obligation on the Secretary to be satisfied, among other things, that an applicant for a disability support pension, in the circumstances in which Mr Kumar was relevantly placed, had “actively participated in a program of support within the meaning of subsection (3C)” (s 94(2)(aa)). It follows that question F does not demonstrate any error on the part of the primary judge.

Question J – costs

47    On this issue, Mr Kumar submitted that the Secretary should pay costs “similar to the circumstances as insurer and insured, and also to avoid ‘churning i.e. first to pay social security benefit and then tax it back’”. The Secretary submitted that costs ought to follow the event and there is no basis for any departure from that general principle.

48    I consider that the Secretary is correct. Mr Kumar has not advanced any valid reason for departing from the general principle that costs ordinarily follow the event. The primary judge therefore made no error in ordering Mr Kumar to pay the costs of his unsuccessful application to that Court. For the same reason, I propose to make a similar order with respect to Mr Kumar’s unsuccessful appeal to this Court.

Conclusion

49    For these reasons, Mr Kumar has failed on all of the grounds set out in his amended notice of appeal and on all of the remaining questions he has validly raised. His appeal must therefore be dismissed and he must be ordered to pay the costs thereof.

50    At the hearing of this matter, the Secretary applied to have the quantum of any costs order fixed in a lump sum. He sought directions for the filing of affidavits and submissions directed to that question. In the circumstances, I consider this is an appropriate course and I will therefore make a set of directions to achieve that end.

Associate:    

Dated:    24 February 2017