Namitha Nakul Pty Ltd and Mr Vaisakh Mohanan Usha
52 Namitha Nakul is the first respondent in each proceeding.
53 Mr Usha is the director, secretary and sole shareholder of Namitha Nakul, and is responsible for the direction, management and control of the company.
54 Namitha Nakul operated the Wollongong Restaurant at all relevant times and the Nowra Restaurant from at least April 2017. The Wollongong Restaurant and the Nowra Restaurant were 35-seat and 40-seat restaurants, respectively, which served Keralan Indian cuisine for both takeaway and dine-in lunch and dinner.
55 Mr Usha affirmed two affidavits in the proceedings on 7 September 2020 and 28 September 2021, respectively.
56 Mr Usha was not an impressive witness. He frequently provided long winded, self-serving and argumentative responses in the course of his cross-examination. His responses typically had the effect of obfuscating, rather than illuminating, critical issues to be determined in the proceedings.
57 Much of his evidence, in particular his evidence about the alleged loans that he made to Mr Basi, his denials that Mr Basi was employed by Namitha Nakul prior to November 2016 and that Mr Haider worked for the respondents prior to April 2017, was implausible and reflected very poorly on his credit. When challenged in cross-examination about the alleged loan that he arranged for his brother to advance to Mr Basi, Mr Usha gave the following evidence:
Mr Usha, what I want to suggest is that anyone who has been approached for a loan on one day and the very same person comes back to them four days later for another loan, their response won't be to put their brother on the hook for the money. They will be in a state of disbelief. You understand what I'm saying, don't you?---Yes, but no - because I can tell one more thing, you know. I am the only one, you know, went to her sister home and, you know, met his - his marriage arrangement and everything. But no other, you know, the business owners do that. But in - I - I go from, you know, India. Our culture is like that, help each other, like, you know, that's the reason, you know, I went to his home and, you know, arrange his marriage and everything. I - I treat like as a, you know, family member. That's why I did, you know, a lot of, you know, things like this.
HIS HONOUR: Did you say you treat him like a family member?---Yes.
And he had only worked for you for eight weeks?---Means, you know, he said a lot of his, you know, the - the poor things in the India, you know, they don't have money and those of - you know, the - because of the mankind, one side, you know, I can say. So every day he is - sometimes, you know, he is crying for, you know, they tell that stories and he is crying. So that's, you know, feel - feel, you know, something mankind. That's the reason why I help him. Because, you know, I already - what I am thinking is a four years visa, he already here, so he working for me, because there is plenty of time to repayment. You know, that's all, you know, in my mind.
58 As concerning were Mr Usha's explanations of why loans that he alleged he made personally to Mr Haider in January 2017 were recorded as salary payments on the notations that he made when he transferred the funds from Namitha Nakul's bank account to Mr Haider, including the following exchanges:
MS DOUST: Sorry, Mr Usha. Now, do you see the entries on that page for 31 January and 7 February for - in Mr Haider's bank account?---Yes.
You've described them as "Adithya salary"?---Yes.
"Vaisakh"?---Yes, yes.
That's your words, isn't it?---That's to my word but, - - -
.....?--- - - - you know, that - sorry.
That's the entry you've made when you transferred the money across to Mr Haider from the Namitha Nakul account?---Yes.
And - - -?---Sometimes - sorry.
HIS HONOUR: I don't think he had finished the answer.
Had you finished your answer, Mr Usha?---No. The sometimes, you know, the - I transferred, normally, when he ask money. I transferred like that and, plus, you know, he tried to start work with me, you know, once I opened the Nowra. So what was the moneys, you know, after that I transfers I mentioned that's salary. Because, you know, the future, you know, when I go to the tax agents I had to show them so, you know, the why these moneys goes. And at that times I can't remember so this is already mentioned there so they can easily identify, "Okay, I gave this one in the salary. I can deduct in the future. So, you know, when I start in Nowra, so I can deduct that money there. So I gave advance and I mentioned there, always I am mentioning. So that's the reasons I think I mentioned that.
and,
HIS HONOUR: So what were you paying him salary for? That is, what were you paying Mr Haider salary for in January of 2017?---That I mentioned in the - you know, the transfer. Because, you know, the tax agent can see that, you know, the why I used that money.
Yes, because you were paying him for work that he was doing for you?---Yes, I give money, but I said to the tax agent, "That's money for, you know, the salary, we can deduct it, but it's the loan." So it's paid from, you know, the company, so that's the reason. We have to show the reason to the tax agent, you know, why we spent this money, why we spent - that's the questions he will ask.
Sorry, this was your tax agent?---My tax agent. When I give, you know, the GST - company GST, three months, then we give the bank statement and he will ask, whenever he doubt, you know, the payment, doubt, "Where you spent this moneys," and, "Where you, you know, transfer this money," like that. You know, he will ask.
59 Moreover, Mr Usha's manifest failure to comply with or otherwise appreciate his obligations under the Award and the FW Act, and his apparent willingness to provide instructions that were incorrect to migration agents in relation to visa sponsorship applications and tax agents in relation to the preparation of payslips, also reflected very poorly on his credit.
60 Equally concerning was the unchallenged evidence given by Mr Haider that in response to Mr Basi's complaints, Mr Usha had requested Mr Haider to sign erroneous backdated worksheets and to sign a statement that contained incorrect representations. Mr Haider stated that on or about 10 August 2018, in the course of Mr Usha seeking to persuade him to sign the erroneous worksheets, Mr Usha told him at the Wollongong Restaurant:
You are the only witness in Midhun's complaint you are not a family member so your statement matters a lot. My lawyer is asking you to write a statement. If you give me the statement, I can save you and you can save me. Because if immigration cancels my approval to be your sponsor you will be in trouble.
61 The statement that Mr Usha requested that Mr Haider sign contained representations that were internally inconsistent and, for the reasons I explain subsequently in these reasons, were erroneous, including that Mr Haider never worked on Tuesdays (contrary to other representations in the draft statement and the evidence of Mr Usha in the proceedings), the Nowra Restaurant was only ever open from 11.30 am until 5.00 pm from Wednesday to Sunday (rather than Tuesday to Sunday as accepted by all witnesses in the proceedings), and no work was done at the Nowra Restaurant between 3.00 pm and 5.00 pm (thus ignoring take away orders). The statement was both an attempt to discredit Mr Basi's claims of the hours that he alleged he worked at the Nowra Restaurant and a relatively flagrant attempt to portray Mr Haider as only working 20 hours a week for four hours a day from Wednesday to Sunday, in order to avoid Mr Haider providing a statement that might provide evidence of potential contraventions of the FW Act and the Migration Act.
62 In short, I was not prepared to accept any evidence given by Mr Usha on any matter in dispute unless it was against interest or corroborated by the evidence of other witnesses or contemporaneous documents that had not been prepared by him or at his direction.