Exclusive: Vietnamese man asks minister to avoid separating him from partner and daughter on New Year’s Day

The partner of a Vietnamese man who is scheduled to be deported from Australia on 1 January has pleaded with the immigration minister, Peter Dutton, to let him remain and help raise their 10-month-old child.

HPN arrived in Australia by boat as a 12-year-old in 2010 and has lived for the past seven years in community detention in Perth with other asylum seekers who travelled as unaccompanied minors.

He met his partner, Kesinee Kingrak, when they both attended Greenwood College high school and they began dating in 2014. Their daughter, Lily, was born in February and they planned to announce their engagement in the new year.

His application for refugee status and subsequent review were rejected in 2011 and then reviewed again after a data breach.

He was taken from community detention to the Perth immigration detention centre on 22 December, the day before his 20th birthday. On Thursday his lawyers lodged a federal court application requesting a judicial review of his refugee application on the grounds that the initial rejection failed to consider all the relevant protocols.

The high court this month heard a challenge to the fast-track assessment process that applies to asylum seekers who arrive by boat, a later iteration of the non-statutory process used in HPN’s case, which Legal Aid Victoria argued was “fundamentally unfair”.

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Anna Copeland, a lawyer from Southern Community Advocacy Legal Education Service, wrote to Dutton last week requesting ministerial intervention to allow HPN to apply for a temporary partner visa to remain with Kingrak and Lily.

She said Kingrak was very distressed at being forced to separate from HPN.

But the Department of Home Affairs has said that because HPN is classified as an unauthorised maritime arrival, and his refugee claim was therefore assessed in a non-statutory process rather than by the migration tribunal, he does not meet any of the ordinary categories for ministerial intervention. As a boat arrival, he is also not eligible to apply for a visa.

Copeland is seeking an exemption under section 195A of the Migration Act 1958, which states that the minister may grant a visa of any class to a person who is held in immigration detention “if the minister thinks that it is in the public interest to do so”.

HPN told immigration authorities in 2010 that his parents, who are devout Catholics, had sent him away because the Vietnamese government reclaimed land belonging to their church and they feared he would be exposed to persecution. In an immigration interview, he said: “My mother told me to go and don’t come back.”

He remains a practising Catholic.

In a letter to the immigration department, Copeland said deporting HPN would negatively impact Kingrak, a permanent resident, and Lily, an Australian citizen, by depriving them of his support and making Kingrak a single mother.

She requested he grant a temporary partner visa, which would allow HPN to work and live with Kingrak to apply for a permanent partner visa.

The ministerial guidelines for intervening in migration cases state that the minister has discretion to intervene where there are “strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident”.

“He has formed this little family and it is not good for any of them to be separated,” Copeland said. “It is unnecessary as he would clearly meet the criteria for a partner visa, as he and Kesinee have a genuine and continuing relationship.”

Through Copeland, HPN told Guardian Australia that he did not want to be separated from his daughter. He said that he helped Kingrak with Lily every day, despite his community detention order meaning they are unable to live together, and had taught her to sit up and wave goodbye.

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Two earlier letters from the Labor MPs Tim Hammond, on behalf of HPN, and Anne Aly, on behalf of Kingrak, who lives in her electorate, requesting ministerial intervention have gone unanswered.

If HPN is deported, Copeland said, it could be some years until he was cleared to reapply to enter Australia and able to afford the $8,000 fee to apply for a partner visa.

Copeland said HPN’s detention had already caused “unnecessary suffering”, including causing him to miss his daughter’s first Christmas.

In a statement, a spokeswoman for the Department of Home Affairs said the department was unable to comment on individual cases, but that “individuals who have exhausted all avenues to remain in Australia are expected to depart”.